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Bias and the family courts

The Government has announced plans to rewrite the law relating to legal disputes about children following their parents’ separation to create a legal presumption of shared parenting. This is in response to the recommendation of the independent Family Justice Review panel in November 2011, chaired by David Norgrove, that the law should not be changed.

A popular perception has long been that courts are biased in favour of mothers. Fathers’ rights groups have claimed that fathers will be excluded unless there is a legal right to see their children, particularly where there is conflict between the parents. But how far is this perception accurate, and what effect will changing the law have?

Many parents are able to agree the arrangements for their children following a separation, but where they cannot, it is sometimes necessary to ask the court to make a decision about with whom the children should live (a residence order) and how often the children should see the other parent (a contact order).

Where a judge is asked to make a decision, Section 1 of the Children Act 1989 says the welfare of the child has to be the court’s paramount consideration, and any decision made has to have regard to all the circumstances of the child. For this reason, the law does not specify any presumption as to who the child should live with. It has been clearly stated in both the Court of Appeal and the House of Lords that there should be no assumptions in children cases, as this is at odds with giving paramount consideration to the welfare of each individual child.

Critics of the current law argue that as just 8% of single parents are fathers, there is an inbuilt assumption that children should stay with their mothers after a separation. However, only a similar proportion of fathers provide the main care for their children during a marriage or relationship. The court’s approach to date has been that maintaining the status quo is preferable, unless there is clear evidence that in doing so the child will be harmed, as consistency of care and arrangements are often in the child’s best interests.

Judges have shown an increased willingness to make orders for shared residence, i.e. where the children have homes with both parents, even if the parents live in separate countries. Where there is high conflict between two parents, then the welfare of the child is likely to suffer and the arrangements can break down. The experiences of family justice systems that do have a presumption of shared care, such as in Australia, show that a presumption of shared care can in fact lead to a delay in resolving disputes whilst parents argue over what this means.

Seldom where a shared residence order is made does it mean that the child will spend equal amounts of time with each parent and such arrangements are rare. Most children benefit from a main home. Some campaigners may be disappointed to learn that while the Government are considering introducing a presumption of shared care, the Minister for Children and Families, Tim Loughton, has ruled out any presumption of equal time spent with each parent and that the principle that the children’s welfare is paramount will remain.

Another concern has been where there is a particularly acrimonious dispute resulting in one parent, often the father, being excluded from the child’s life, and the court has wrestled with this problem for some time. While there is no legal right for a parent to have contact with their child, judges have consistently emphasised that a substantive relationship with both parents will generally be in the best interests of the child.

Either parent has the right to make an application to the Court for either a contact or residence order, and for enforcement of that order, and methods of enforcement include financial compensation, imprisonment, and in the most severe cases, a transfer of residence from one parent to the other. The difficulty the courts face is in ensuring that any punishment does not punish the child. Tim Loughton has ruled out establishing a legal guarantee for contact between parent and child, and with no clear proposals for further enforcement powers, it is difficult to see how the new plans will help where one parent is determined to exclude the other.

It is encouraging that the Government are to make available a further £10 million for mediation services, but for those cases that cannot be resolved without the intervention of the Court, it seems unlikely that the proposals will lead to any difference in outcomes. Indeed, there is a risk that the current perception that the law is biased against fathers, which deters many from pursuing the options open to them, will be replaced with an equally inaccurate perception that parents will be guaranteed an equal amount of time with their children following separation.

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