26  Custody


 “My husband left me 3 years ago and, despite initial difficulties, with the help of my social worker, we were able to maintain an amicable relationship. We agreed that our daughter Charlotte, now aged 9, would live with me and he would have unrestricted access. Six months ago he fell madly in love and married some woman who can’t have a child and they have taken it into their heads that they would like mine. My husband is now involving me in custody proceedings and has ransacked the past for any misdemeanour going back to trying pot in the 60’s to prove that I am not a worthy mother. This is having a terrible effect on me and Charlotte has started bedwetting. Her class teacher is concerned at the sudden drop in her concentration. My social worker is now saying she thinks Charlotte will be better off with my husband.”

 Mrs E


 Many people will recall the biblical tale of the judgement of Solomon. During his reign, two women came before King Solomon, each claiming to be the mother of the same baby. They had both given birth to babies the same week but one of the babies had died. King Solomon ordered a sword to be brought and said the living child should be cut in two with half given to each alleged mother. When one woman offered the baby to the other to avoid it being harmed King Solomon pronounced her to be the true mother. Perhaps some of the popularity of this story (I Kings 1 16-28) comes from its hope that a parent has only the best interests of the child in mind. This biblical child did not have to be cut in half. However, all too often the needs and wishes of battling adults take precedence over the needs of the vulnerable child who is metaphorically torn apart.


 A child is the product of its two biological parents. Where the parents divide, the child’s loyalties also become divided. Psychoanalyst Brendan Mac Carthy has pointed out that it is more helpful to think of a “Two-family child” than a “one-parent family”. Whatever the eventual outcome for Charlotte, the fact that her father has remarried is not a casual matter.


 Perhaps one helpful understanding in the biblical tale is that it was a loss, the death of a baby, that led to dangerous litigation. Mrs E’s account involves several losses. She lost a partner in the task of parenting. Then, with her ex-husband’s new marriage, perhaps Mrs Es first loss was confirmed. Although she refers to him still as her “husband” he is not only her “ex-husband” he is now someone else’s husband. Now he is threatening further loss - to take away their daughter whom she has looked after for 9 years - as well as a picture of herself as a good parent.


 Mr E might also be in difficulties. In remarrying, he is possibly also experiencing the loss of hopes for an unbroken primary family. However good a relationship Charlotte makes with him and his new wife, she is also the child of Mrs E who has been her main caretaker. For Mr E there may be hostility to his new wife for not being able to have a biological child of their own. It may be easier to re-direct this to his ex-wife because he cannot deal with it himself.


 What about Charlotte? In bedwetting and not concentrating at school she may be showing how angry and uncontained she feels. The new marriage may mean having to give up fantasy hopes of her parents reuniting and will bring about a loyalty conflict over her parents. However difficult divorce is for the children it can be worked through, if there is goodwill on the part of the adults. Charlotte’s father left when she was 6. We do not know under what circumstances or what the impact of that loss was. However, with the aid of a social worker, the family managed to achieve a new equilibrium. If Charlotte has managed at nursery and school up until now and is content living with her mother we can assume that it is not solely the divorce or remarriage that have troubled her so profoundly.


 Rather, her father’s adversarial way of gaining custody of her by blackening her mother’s reputation is not helping her mother or her. What has happened to Mr E to change his behaviour in such a short time? Mrs E says he has fallen “madly in love” and that is a telling phrase. The initial stages of falling in love - as opposed to loving - involve madness. “The Changeling”, performed by the Royal Shakespeare Company, is an excellent paradigm of that. As Dominic Cooke, Assistant Director comments, “It is a process of mental disintegration when reason is surrendered to desire”. Under the influence of the madness of love crimes are committed. In the same way, powerful feelings are moving the complex tangle of family needs and distress of the E’s into litigation. In her book on “Children’s Welfare and the Law”, co-written with lawyer Michael King, Consultant Psychiatrist & Psychoanalyst Judith Trowell makes the important point that in cases involving children’s welfare there is a high price to be paid for using the law to protect individual and family rights. She emphasises that the hidden cost is the effects of the legal intervention on the children themselves and their relationships with those who care for them. She sees mediation as the main answer.


 The Hon. Mr Justice Thorpe, of the Royal Courts of Justice, agrees. “I think the main hope is in mediation. Mediation or conciliation has been perceived by intelligent and concerned professionals for many years as a necessary evolution. In the absence of central funding, we have the development of smaller offshoots. For those who are able to be helped through mediation there should be central funding to all areas of the country. However, there will always be some who are seeking dispute”.


 Dr Judith Trowell also hopes there will eventually be central funding. In the meantime, she comments, “The amount spent on legal aid is going up and the main cost is over custody proceedings. How do we as a nation work out our priorities? Should we support people through acrimonious battles which hurt the child as the E’s are about to or should we instead use some of that for a mediation service? Where there are warring parents and another agency involved as with the E’s and mother’s social worker, there is nowhere for them to go without going to court. I would want a mediation service where mother, father and social worker could be seen together rather like the Scottish panel or the legal system in France.




 “Children’s Welfare and the Law: The Limits of Legal Intervention” by Michael King and Judith Trowell, Sage Publications 1992


 Dr Judith Trowell, The Tavistock Clinic, 120 Belsize Lane, London NW3 5BA, 071 435 7111