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Archive for the ‘Tender Years Doctrine’ Category

Parental Rights and Sexism in the UK – Tender Years Doctrine = Maternal Deprivation

In Alienation of Affection, Best Interest of the Child, Marriage, Maternal Deprivation, Non-custodial fathers, Parental Kidnapping, Parental Relocation, Tender Years Doctrine on August 3, 2009 at 6:05 pm
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Tender Years doctrine
How does this psychological theory influence court orders for contact and custody between mothers and fathers?


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Precedents, Case Laws and Court Authorities in family proceedings


‘Bonding’
Why fathers are so important to the development of children and the seminal contribution of Professor Sir Michael Rutter


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Tender Years doctrine
Professor Sir Michael Rutter, 13th March 2002
“Very many thanks for sending me a copy of your interesting and informative guide on ‘even Toddlers Need Fathers’. I much appreciate your drawing my attention to it”

Most people who attend family proceedings for the first time expect the courts to be objective and impartial but according to Clare Dyer, the Guardian legal correspondent, ‘Under the present law, mothers who defy court orders can be jailed for contempt but the power is rarely used because judges are loath to deprive small children of their mothers.’  (‘New law may boost rights for fathers’, 29th October, 2001).

You may think if this is the situation what is the point in going to court in the first place? But there is also a psychological theory which supports the view of judges highlighted by the Guardian article. Dr John Bowlby (This symbol indicates there is also a YouTUBE video on this topic) working after the Second World War took the view that it was wrong to remove a small child from his or her mother. He called his theory ‘maternal deprivation’.  However it is rarely mentioned by name in court and it is more commonly referred to in legal proceedings as the Tender Years doctrine . The ‘Strange Situation’ procedure and Separation Anxiety
Link to YouTube Channel

The former Master of the Rolls, Lord Donaldson, felt the same way as Dr John Bowlby when he made the following precedent  in 1992, which subsequently became a cornerstone of UK family law.

‘At the risk of being told by academics hereafter that my views are contrary to well-established authority, I think that there is a rebuttable presumption of fact that the best interests of a baby are best served by being with its mother, and I stress the word ‘baby’. When we are moving on to whatever age it may be appropriate to describe the baby as having become a child, different considerations may well apply. But as far as babies are concerned, the starting point is, I think, that it should be with its mother.’

Although Lord Donaldson specified ‘babies’ a judge may apply the principle that the child should be raised by their mother, at any age.In the same year as this precedent Professor Sir Michael Rutter was knighted for his contribution to children’s welfare which included the seminal work ‘Maternal Deprivation Reassessed’ (Penguin, 1972) that contradicted Bowlby’s research findings.

i. Investigations have demonstrated the importance of a child’s relationship with people other than his mother.
ii.  Most important of all there has been repeated findings that many children are not damaged by deprivation.
iii. The old issue of critical periods of development and the crucial importance of early years has been re-opened and re-examined. The evidence is unequivocal that experiences at all ages have an impact.
iv. It may be the first few years do have a special importance for bond formation and social development. (page 217)

‘ Psychology in Family Proceedings”
Link to YouTube Channel
According to ‘What the Family Courts expect from Parents’ issued by the Midland Region Family Judges and Magistrates ‘, “Denial of contact is very unusual and in most cases contact will be frequent and substantial”. Yet by adopting the Tender Years doctrine judges in family proceedings can effectively deny fathers a parental role thus deflecting them from actively participating in their child or children’s upbringing.

Baroness Richmond, the first female ‘Law Lord’, described the difference between Bowlby and Rutter’s approach in the following way;-

15.  Sir Michael qualified the original theory of ‘maternal deprivation’  which had been developed by John Bowlby and expressed for popular consumption in a book called  ‘Child Care and the Growth of Love’. That theory was that children were damaged by separation from their mother or mother figure. Sir Michael Rutter pointed out that children were not invariably so damaged and that, in any event, other people, including their fathers, are also very important to children.

Nevertheless, despite the words of Baroness Richmond judges are still loath to “deprive small children of their mothers” and whether it is called  maternal deprivation or the ‘Tender Years’  doctrine it is still this precedent set by the former Master of the Rolls, who is the most senior judge with civil responsibilities, that prevails.

Tender Years Doctrine.

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