(Preliminary Draft, Friday, 27 October 2000)
The scandal of
the UK Govt’s flagrant violation
of EU Council Directive 79/7/EEC of 19 December 1978
principle of equal treatment for men and women in matters of social security
“An invasion of armies can be resisted, but not an idea whose time has come." Victor Hugo
1. Exclusion of father as a social policy objective
2. Fathers reaction
3. Why indeed should fathers have to prove themselves worthy of parenthood only because mother no longer wants him in her orbit?
4. Institutionalised oppression in secret courts via the use of amateurs posing as experts in matters of child welfare.
5. Children and fathers not caring for them – Review of Research
a. Objective condition – Children need fathers
b. Fatherless children – statistical findings
c. The cost to society as a result of fatherlesness
6. Case studies (involuntary unemployment, accident at work, sickness, disability)
7. Council Directive 79/7/EEC
8. European Convention on Human Rights (now incorporated in the HRA)
9. Stats – request for help with data collection
Part C - Social Contract, Discrimination and Parental Obligations
6. The Long and winding Road
7. Power v Sympathy
8. Retreat Options:
Upfront: I have been violated. I have not given up. I have not lost being a father. My kids have a direct day-to-day fathering relationship with me. Addressing a large group of people is new territory for me. So let me begin:
1) For the last 20 years, social policy has removed fathers from their children. Legislative changes have allowed mothers to kick fathers out of their home. Legislative changes have allowed mothers to take off with children without consulting the children’s fathers. Legislative changes have allowed the state to provide mothers with the means to move children to the other end of the country or abroad. Legislative changes have allowed the state to pay lawyers to legitimise mothers’ conduct, all within a legal apparatus that relies on a bunch of amateurs posing as experts in matters of child welfare.
2) Fathers reacted to this social policy mostly with helplessness or with despair. Some reacted with suicide, others murdered, many become isolated, others retreated into alcoholism, a few got themselves imprisoned for so-called kidnap of their own children. Some got organised by joining fathers groups.
3) Most fathers groups offered band-aid to men in pain. They advised men to engage into a ritual of pleading with courts what a good person you were, in order to be rewarded with a so-called contact-Order, a order not enforceable through courts and thus not worth the paper it’s written on.
4) By and large fathers groups have refrained from formulating a full political analysis of the charades and disempowerment rituals played out by well-paid lawyers behind the closed doors of secret courts.
5) By and large the political strategy by fathers groups (if there was any at all) focused on gaining some sympathy amongst the wider public for the painful blight that ejected fathers suffered.
6) Few fathers managed to rise above the emotional hurt and wounding inflicted upon them by the social work/welfare brigade that is promoting the myths that perpetuate social norms, which oppress and humiliate fathers.
7) There are no reliable statistics available about what goes on behind the closed doors of courts, because independent experts are denied an opportunity to scrutinise the methodology or degree of expertise/ ignorance of untrained probation officers on whom children’s futures in courts rely.
8) There are no reliable statistics on fathers’ eventual trauma following separation from their kids, however health statistics are pertinent with suicide and accidents at work.
The central theme of my talk is not about what goes on in courts. What I want to show with my story is how the principles of father disempowerment are structurally integrated in England’s social norms and social policy. I want to show one example of how England’s treatment of fathers violates international law which lays down how European Governments have to treat European citizens when a citizen is unable to work and has to have recourse to public funds (i.e. Sickness Benefit, Unemployment Benefit, JSA, Disability Benefit)
The story begins some three years after my wife had left me, and after three years of operating a near 50/50 shared care arrangement. I found myself in court facing a custody battle. At the end of a trial (which cost the taxpayer over £ 20,000 in legal fees) the judge through a court order instructed me to continue to continue the status quo and continue with being responsible for the care of my children for just under 50 % of the year.
In other words: despite of the children’s mother no longer living with me under the same roof, I - a father - was instructed to continue the three year long status quo whereby I was to be the carer of my children for nearly half of every week, as well as half of all school holidays.
With Christmas 1998 on the horizon, I had found myself without a job. I was forced to claim an unemployed person’s Jobseeker's Allowance (Income based). With the kids school holiday period with me about to start I stated to the official that I am instructed by an order of a judge to be caring for children for half the holidays as well as for half of the ordinary school weeks.
The way the Social security system responded was as follows: I was not paid a penny until the middle of January, when I was also told that I would not receive a penny more than any other lone adult who has no children to care for.
I appealed, and the appeal produced a decision (later also upheld by the Social Security Commissioner), which stated that: -
“ [I] could not be treated as responsible for his children”.
I discovered that if you were a father looking after your children for a substantial amount of time (but less than 50%), you would find that within current Social Security rules that you cannot claim social security benefits in respect of the children who are in your care.
This is because benefits for dependents are passported through something called “Child Benefit” which the mother will get, but that you, as a father, will not get as of right as a carer for children.
Under present regulations “Child Benefit” cannot be split between the parents, even if the care of children is completely shared 50/50.
This is manifest sex discrimination and it is submitted, contrary to both EU-law and the European Convention on Human Rights (now incorporated into the Human Rights Acts).
A test case has been brought by myself and there is a pending appeal to the Court of Appeal from the Social Security Commissioner.
The three lines of attack are as follows:
Jobseeker's Allowance Regulations 1996 (SI 1996/207) Regs. 77(1) & 77(5) when read together are ultra vires and irrational because they ignore the will of Parliament and the provisions of the Children Act 1989 regarding Parental Responsibility [Ss. 2(1), 3(1)] and Shared Residence/Actual Custody [S. 11(4)].
When calculating Jobseeker's Allowance, Regulations 77(1)(5) deny the Applicant unemployed parent increases due for his dependent children. The effect is to defeat his ability to comply with the intention and purpose of the Shared Residence Order made by the Judge in the Principal Registry Family Division on 06/10/97 - that is, to properly provide and care for those children in the periods when they reside with him pursuant to the terms of this Order made by a Court required by law to make the children's welfare its paramount consideration.
The decision by the Adjudication Officer breached the Principle of Equal Treatment for Men and Women In Matters of Social Security [79/7/EEC Art. 4.1] - here in relation to the calculation of increased benefit in respect of dependants payable within a scheme for protection against unemployment [Art. 3(1)(2)].
By making the award of increased Jobseeker's Allowance in respect of the two dependent children conditional on receipt of Child Benefit (CB) for them, the Applicant has been discriminated against indirectly.
Applying a condition of receipt of CB, albeit applied equally to all, has a disproportionately detrimental effect on one sex (men). The CB rules comprised in Schedule 10 Social Security Contributions and Benefits Act 1992 manifestly favour women over men as receivers of Child Benefit. In the case of parental separation/divorce it is proportionately far more mothers than fathers who receive Child Benefit: statistically approximately 91% mothers compared to 9% fathers.
The Applicant requests the Tribunal to make a reference to the European Court of Justice under Art.177 of the Treaty of Rome to determine whether Regs. 77(1)(5) are in breach of European Community Law.
When calculating the benefits payable to a parent who has kids in his care (but no child benefit book) JSA Regs. 77(1)(5) breach the European Convention on Human Rights, Articles 8(1) & 14. The Applicant's right under Article 8(1) to respect for his family life has been violated by the English Court ordering that his dependent children live with him under a Shared Residence Order, but the Social Security legislation denying him the necessary benefits as an unemployed parent to adequately provide and care for them.
Article 14, which requires Convention rights to be secured without discrimination on grounds, inter alia, of sex, has been violated because as between separated/divorced parents who both provide and care for their children the Social Security legislation disproportionately favours mothers as against fathers in providing financial benefits for the parent to care for the children in the periods when they are with her or him respectively. In particular this is so in the case of the Applicant and his children's mother: she receives such benefits whereas the Applicant receives none.
In relation to challenging Government discrimination in courts, I don’t much care about which way the judges will decide when the appeal is heard in the Court Of Appeal (CoA) sometimes between Jan-Easter 2001.
If the honourable judges finally force the Government to comply with the British Governments international obligations, then I’ll say:
“ Well I’ve had to wait for this since before Xmas 1998 – and it’s about time”.
If, on the other hand, the Court of Appeal Judges were to rule that fathers in England will continue to be excluded from the obligations the English state has to wards its own citizens (and migrant workers from other EU member states) then I’ll say this:
“There are currently many men paying into the social security fund, who in the unfortunate event of them having an accident at work or becoming unemployed, will be denied any extra provision for children in their care with obviously disastrous effect on the quality of care they can provide. If English judges were to rule that the English state has no obligations and a social contract towards fathers, then by implication these judges would also say that fathers may now disregard any obligations to wards the state, towards the payment of taxes or towards contributing into a social security system that is provided by taxpayers.
Social Contract is not a one-way relationship. A social contract is either defined by a mutuality of obligations – or there is no social contract.”
It is also plainly non-sense that we can have a system under which courts have the power to investigate and make decisions which are supposed to be in the child’s best interest, and then have a Social Security which despite international obligations, human rights and expensive orders made by English judges mails envelopes to fathers containing the words:
7- Some Conclusions.
· Sex Discrimination outlawed by European Legislation continuous in Great Britain
· Regulations originating in legislation governing the administration of Social Welfare have implications beyond that what happens in divorce and residence/custody hearings in courts, where judges are (nominally) tasked to rule about the future of children.
· Social Security legislation makes Family Court decisions irrelevant. Courts are disqualified from making decisions, which are based on what is in the best interest of children.
· Courts have to make decisions based on the principle of discriminating against non-child benefit book holders, and the Social Security dictat that benefits intended to assist with the care of children, cannot be split amongst the genders.
· Social Security and obligations on European Governments and breaches of obligations can be monitored, analysed and calculated.
· By withdrawing from obligations towards parents, The British Government legitimises that fathers may rightly ignore the law in relation to Contributions to a Social Security Welfare Net or the New Labour Gender Tax which is intended to replace the CSA.
The State has for many years recognised that parents who have responsibility for children need and deserve support by the State when they are unable to be economically active. So when someone has just given birth, or when somebody is ill or unable to find a job, the State pays a Social Benefit to the adult, as well as a premium in respect for the child/children - unless that is, the adult is the children's father. One of the greatest hidden injustices of our welfare system is that separated and divorced fathers who are not designated the "primary carer" of their children, but who nevertheless look after them for considerable periods of time, are not entitled to receive Child Benefit.
In practice, this means that a man who has been allocated responsibility by a court to look after his children at weekends, during school holidays, or for anything short of fifty percent of the child's time, will receive the same benefit payment as someone who has no responsibility for children whatsoever, which is currently £50 per week. Put another way, if a separating couple agree that the father will look after the children for three days a week, and the mother for four, all the benefit goes to the mother. From the relative comfort of well-paid employment this may seem a trivial anomaly. But if you're unemployed and living on the breadline, it means the ability to put a decent meal on the table for your children.
It seems extraordinary that the Benefit System should require children to go hungry when they are in the care of father who is temporarily unable to work due to an accident. It seems even more extraordinary that the British Government would expect a father to pay into a system, which does not extend to the provision of financial assistance for the care of any children being looked after by that particular parent.
The reason of course is that this part of the system is still modelled on old assumptions about the traditional roles of men and women. Many of these assumptions have been swept away, but not, curiously, the notion that mothers should receive all the child benefit even though they do not have the children all the time.
Even more extraordinary, the British New Labour Government is giving one hundred pounds per week to any mother so that strangers and institutions can look after the children.
There are tens of millions of fathers in Europe who have not been removed from the children completely by separation and divorce. These men are often ordered by courts to be responsible for children every other weekend and weeks during holidays.
The British Government must take a lead now in changing national law which violates EU law as well as the Human Rights Legislation to ensure that fathers can look after their children properly even when fathers are unable to work.
If the Government or judges continue to insist
that the state should continue to discriminate against fathers when they are
vulnerable, than fathers can now morally, emotionally, as well as financially,
retreat from any sense
of having responsibility towards children, the upkeep of a
welfare system, CSA payments or the soon to be introduced New Labour Gender Tax.
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