A high court judge who gets it utterly wrong

I’m a big fan of high court judges, especially those in the family division. And that’s not just because I work with one. High court judges are called upon to exercise the wisdom of Solomon. Children’s lives rest on the consequences of their judgments. How many of us would swap places with a judge who spends their days making impossible decisions about who gets custody and under what conditions or – far worse – whether the parents themselves forfeit their right and cede custody to the state? Everyone knows the state, in the form of the care system, is hardly the ideal parent. So these decisions cannot be taken lightly. A friend of mine who is a top family barrister rates the high court judges highly. They do a superb job in impossible circumstances, he says.

So when a high court judge in the family division says something that is both wrong and unwise, it jars. I was surprised that only the permanently outraged Daily Mail and a couple of columnists – one for, one against – appear to have picked up on what he said.

Here’s what judge Sir Nicholas Mostyn said at a family law conference a few days ago:

“I also bridle at the implication that a marriage is a better form of relationship than a non-marital one. It is not the role of the state (in my humble opinion) to go round telling people how they should form their relationships”

This is a quite extraordinary statement.

Let’s swiftly dismiss his second point. The state is already massively involved when relationships go wrong. 45% of all teenagers have experienced family breakdown. At any one moment there are 2.5 million lone parents and stepparents. The £46 billion annual cost of family breakdown equates to half of the education budget. This is more than the entire defence budget. As just one example of where the money goes, 63% of all lone parents receive housing benefit compared to 10% of couple parents. Therefore the state has a huge vested interest in containing or reducing family breakdown. That it does virtually nothing is due to the political influence of those like judge Mostyn who assume that family breakdown is inevitable. It is not.

Now to his first point. Does one type of relationship have a greater degree of stability over another? In his address, judge Mostyn mocks some of the evidence quoted by my colleague Sir Paul Coleridge before arbitrarily dismissing it out of hand. He repeats the common logical fallacy that correlation cannot equal causation, without providing the slightest evidence for this claim.

Two pieces of evidence in particular challenge his view.

Firstly, we hear a lot about high divorce rates because they are easy to count and measure. Among married parents, an estimated 30% split up before their children reach their teens. But how often do we hear about the 81% break-up rate among unmarried parents who never marry? The consequence is that, despite nearly half of all babies being born to unmarried parents, just 4% of today’s teenagers live with both natural parents who have not married. Compare that to the 51% of teenagers living with both natural parents who are married. Presented a different way, this means that 93% of all intact parents with teenagers are married. This is pretty stunning evidence that there might be something afoot here.

Secondly, we hear a lot about how married people do better only because they are the kind of people who marry. It’s undoubtedly true that part of the explanation comes from what is called the ‘selection’ effect. Those with more education or higher income are more likely to marry. These factors cushion relationships from some of life’s hardships. And this is true for unmarried cohabiting parents as much as it is for married parents. But it’s not the whole story. Most people would accept that both income and education have improved since, say, 1980. Therefore, we should expect to see the prevalence of lone parenthood reduce. In fact it has doubled. Divorce doesn’t explain this rise. The number of divorces has plateaued and fallen since 1980, which leaves only two possibilities. Either we have become serially incompetent at holding down relationships – a proposition that is both deeply patronising and lacking in evidence – or there is something about the trend away from marriage that has led to this doubling in family breakdown.

Whether one likes it or not, Sir Nicholas, the evidence is crystal clear. Marriage is qualitatively different from unmarriage. Surprised newlywed Brad Pitt made this point rather elegantly this week. Much more importantly, the empirical data doesn’t lie.

Long-term stable relationships outside marriage are the exception, not the norm.

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One thought on “A high court judge who gets it utterly wrong

  1. Pingback: Hope in the gloom: Harry’s November newsletter |

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