When Lara Feigel handed the first draft of her manuscript Custody: The Secret History of Mothers to her publisher last May, it felt like a huge achievement. The non-fiction book recounts how, for the last 200 years, ideas about women’s roles have shaped court decisions to remove children from their mothers’ care. Stretching from 19th century France to Britney Spears’s experience in the late 2000s, Feigel found a common theme: how mothers’ occupations – singers, poets, writers and activists – were often used against them to claim they weren’t fit to raise their children. In many cases, the privacy laws surrounding custody cases were used to prevent them speaking out.
Commissioned by HarperCollins, it was scheduled for publication on 15 January. But the very system Feigel had scrutinised intervened: the complex rules she had reported on were invoked to halt the book and compelled her publisher to destroy every copy before publication – 6,000 in total – not once, but twice.
It was Feigel’s own experience in the family courts that prompted her to write the book. In 2020, the writer and her ex-husband appeared before a judge to negotiate custody of their children. As Feigel waited between court dates, she began reading about women throughout history who had their children taken away. She found parallels in their stories and her own.
‘I had been held to account by standards I had mistakenly believed feminism to have eradicated’
‘I had been held to account by standards I had mistakenly believed feminism to have eradicated’
“The family courts are where the public and the private come together in intimate and complex ways, both now and in the past,” Feigel told me. “It is the most intimate sphere where we can locate the struggle between patriarchy and feminism.”
At first, she says, she was naive when she began her custody process: she thought the judge and barristers might act as mediators to help the former couple decide what was best for their children. But when she took her turn on the stand, she realised that modern views of motherhood could be weaponised inside the courtroom.
“I quickly began to feel that I was being judged not only as a mother but as a woman,” she would later write in her book. “I came away from court feeling I had been held to account by standards I had mistakenly believed feminism to have eradicated. Women weren’t meant to write books or own property; and if we aren’t sufficiently emotional and sufficiently repentant, we can’t be the kinds of mothers who put our children first.”
After the case concluded, the writer immersed herself in research and began thinking of a book, but Feigel knew that the strict privacy rules that govern family courts would make her own story almost impossible to tell.
Cases in the family courts cannot be reported on in the same way as criminal courts – a child’s right to privacy limits what can be said about the proceedings. In recent years, journalists have been permitted to report on the details of cases, so long as they maintain the anonymity of all participants. But the participants themselves are far more restricted – because anything they say publicly inevitably involves identifying themselves, and the people around them. In many cases, these restrictions have been argued to have a silencing effect on women who have suffered abuse, and who feel the secrecy of the law is being used against them.
For Feigel, this had serious ramifications when it came to finally publishing and promoting her book.
Once the January release date was agreed, the Guardian was due to publish an extract as part of a promotional campaign in the weeks before the book hit the shelves. But the newspaper’s lawyers were concerned. There was confusion about whether an appendix to another case she had quoted could be included. She could have gone to the court to ask for clarification, but the backlog in the system would have meant waiting up to a year.
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It was 21 December and the book was due to go on the shelves less than four weeks later. The publishers decided it was safer to delay the book than risk being in contempt of court, so 3,000 copies were pulped.
“I think HarperCollins’s lawyers were over anxious,” Feigel says. “Publishers’ lawyers are generally defamation lawyers and because family court reporting is quite a specialist area, they were conservative in ways I think they wouldn’t necessarily have been if it had been a libel case.”
The book was then reprinted with a few sentences removed, and a new publication date set. Feigel began doing publicity interviews. Her ex-husband hadn’t yet read the book – there was almost no reference to him, or their children, so Feigel hadn’t involved him. At this point they were co-parenting respectfully and were managing the occasional family activity together, she says.
“He must have seen my interviews and he sent me a couple of jokey text messages,” she recalls. “I immediately responded, asking if he wanted to engage but I didn’t hear anything back. The next thing was an email from his lawyers.”
Her ex-husband was threatening legal action; the legal letter focused on a few lines in which Feigel described the argument her ex-husband’s barrister made in court, and suggested that even the fact that Feigel had written about being involved in a custody battle was against the law and could result in her going to prison.
“We disagreed with that strongly,” says Arabella Pike, Feigel’s publisher at HarperCollins. “ The irony of it is exquisite; this book is about the history of how there’s an adversarial element built into the courts which questions who is a good mother.
“Lara doesn’t talk about the children at all in the book, but she talks about her feelings on the witness stand in this custody case,” she says. “Surely that’s a perfectly valid thing to have done as a professional writer writing about the history of custody law.”
Days after that first legal letter, Feigel’s ex-husband appeared at a promotional event at a bookshop. One woman in attendance said: “ He stood up and started saying, ‘This book is in contempt of court! It’s illegal! It’s all about me and my children. You shouldn’t be here.”
“The bookshop owner asked him to leave but he refused,” she said. “ Lara Feigel was very upset in a corner, and it was clear she wasn’t going to be signing books.”
Dr Charlotte Proudman is a family court barrister who has campaigned for modernisation in the family courts. “The offending passage in Lara Feigel’s book consisted of three sentences where she described the arguments used by her ex-husband’s barrister in court. She didn’t identify her children, ex-partner, the judge or the court,” she said.
Proudman says the law’s insistence on a blanket ban on anyone involved in the case discussing the details clashes with Feigel’s right to voice her own experience. She believes the legal threats from Feigel’s ex-husband were “a tactic akin to control,” and “an attempt to harm Lara Feigel’s reputation and career”.
Despite agreeing that Feigel had a right to describe her experience in court, HarperCollins’s lawyers erred on the side of caution and pulped the book for a second time. Three thousand copies were destroyed again. A book being pulped once is unusual, but it happens; twice before publication is unheard of.
Edward Lamb KC, a barrister who has spent years in the family courts, said: “The starting position of the law is to protect children when the very private intimate details of their upbringings are being litigated in court and should not be repeated in public. So the starting point is a good one.”
“It’s only recently that the courts are starting to understand that parents have stories to tell that are hugely relevant to how we function as a society and there are circumstances when that story can be told while the children are still being protected.”
Lamb says recent case law is emerging that shows that the courts are trying to grapple with the tension between very private rights on the one hand and the need for society to understand what is going on in court rooms.
“I hope this book will help raise questions about this issue,” says Pike. “Professional mothers are being put on trial for whether or not they can combine being a good mother and having a career, when the same does not apply to fathers. The book is a feminist history of some great women who have taken on this fight in the past – but it is a fight that still needs to continue today.”
When approached for comment, Feigel’s ex-husband said: “My reason for taking legal action was to put a stop to the public discussion of sensitive and entirely private matters concerning our children.”
In the last few months Feigel has found herself fighting for custody not of her children, but of her own experience. She believes her difficulties in getting the book published underlines the whole point of her research.
“There’s an element of all this that’s vindicating,” Feigel says. “My book, chapter after chapter, is about the way that men have used the courts to punish their ex-wives under the guise of protecting their children. My case makes me even more sure that these are stories that need to be told.”
Custody: The Secret History of Mothers by Lara Feigel (HarperCollins £25) is available now
Photograph by Philippa James for The Telegraph