Why divorce is an explosive issue

The move to curb the purchase of babies on the Internet has put the political spotlight on family law

Joshua Rosenberg, Legal Editor

FAMILY law is suddenly high on the political agenda. The Government is moving quickly to stop couples, sech as Alan and Judith Kilshaw, from importing children sold through the internet unless they have already approved as suitable adoptive parents. And, to nobody's surprise, Lord Irvine finally confirmed last meek that he was dropping his predecessor's plans to introduce no-fault divorce.

"Anything to do with the family is pure political dynamite," observed Mark Harper from the City law firm Withers. "Politicians take the view that it is best to avoid anything that looks life a touchpaper."

Should divorce be reformed? One barrister, who asked not to be named, said the problem lay with the judges: they were biased against husbands. In a typical divorce, he said, the court would decide that the children should live with their mother. So, if a woman got tired of her husband, she could force him out of his home.

"Whoever gets the children gets the house," he said. "Then, when the father goes round to collect his children, his ex-wife's new boyfriend won't allow him in."

As an absent parent, a father must pay child maintenance. He may also have to pay maintenance to his ex-wife, even though she may be supported by her new boyfriend. And the children themselves? Statistically, they are more likely to be abused by their stepfather than by a natural parent.

Worse still, according to the pressure group Families Need Fathers, are the cases where mothers decide to live abroad and the courts allow them to take children out of the country. That can leave a father with little prospect of seeing his child again.

Trevor Berry, the group's president, claims the courts don't really know whether such a move is likely to be in the child's best interest.

How do family judges respond to such allegations? All would acknowledge that in divorce cases - as in any litigation - one side may believe it has had a raw deal. "There may be some justification for that view," one judge told me. "We sometimes get it wrong."

But he insisted there was no bias as such against fathers. "One hundred per cent of mothers are women," he said. "They have a personal attachment to their children that a father cannot have in the same way."

In his view, it was not unnatural for the mother to be the child's primary carer in its most tender years: "We don't say that children should always stay with their mothers. But there are many cases where you don't disturb that arrangement."

Rosemary Carter, chairman of the Solicitors Family Law Association, agrees that the present divorce laws are likely to be with us for many years to come.

But it may be possible, she feels, to soften the harsh edges of fault. "We have been looking at ways of helping people through divorce in ways that minimise the distress and acrimony."

In cases based on adultery, most judges no longer insist that the petitioner should name the co-respondent the third party. In petitions based on behaviour, Miss Carter's association recommends that written allegations should be kept to the minimum necessary to secure a divorce (which may not be very much, these days).

Isn't this no-fault divorce by the back door? Miss Carter says there must still be evidence. A petitioner who makes it all up can be prosecuted for perjury.

The Solicitors Family Law Association recently submitted proposals that would allow an adult who had cohabited for at least two years to apply for financial support in the event of a separation, unless the couple had agreed to opt out. There would be no minimum period if there were children.

Cohabitation would be defined as a "personal relationship (other than a legal marriage) between two adults in which one provides personal or financial commitment and support of a domestic nature for the material benefit of the other". It would, therefore, include couples of the same sex.

Wouldn't this undermine marriage by putting cohabitation on an equal footing? Not so, said Miss Carter.

"We believe in the institution of marriage; it provides a very good vehicle for bringing up children. But it is not the only possible or even the only good model."

Meanwhile, a High Court judge is being asked today to decide what should happen to the Kilshaws' twins. Like almost all family proceedings, the hearing will take place in private.

Recently, however, Dame Elizabeth Butler-Sloss, President of the High Court Family Division, has been allowing selected journalists limited access to certain hearings.

Family judges have always released important rulings for publication. We know, for example, how they make life-or-death decisions in medical cases: whether feeding should be withdrawn from a terminally ill patient, or whether a mentally handicapped woman should be sterilised.

But what struck me on a behind-the-scenes visit was how much of the court's time was taken up with attempts to save the lives of vulnerable children.

Take the example of a woman whose baby is suddenly found dead. Is it a genuine cot death? Or has the baby been shaken, perhaps by the mother? Are the child's injuries the result of a tragic accident? Or did someone hit it?

Or was this a case of Munchausen syndrome by proxy, where the mother repeatedly fabricates or induces symptoms of illness in her child to persuade doctors to carry out unnecessary treatment?

Such alarming behaviour is more common than we would like to think, and those responsible are not always brought before a criminal court. What family judges must the decide is whether a mother who may have harmed or even killed her own child should be allowed to look after another one.

Leave a child with a disturbed mother, and you may condemn it to death. Take a child away from a blameless woman, and you are depriving it of its birthright.

It's not just politicians who find family law a challenge.