Do fathers get a raw deal from the family courts?
Do fathers get a raw deal from the family courts? It is not uncommon for fathers to claim that social workers, Cafcass officers and Judges discriminate against men when deciding issues about who a child should live with, or what contact arrangements should be in place.
Recent research by academics at the Universities of Warwick and Reading found that the courts demonstrated no gender bias in contested cases about where a child should live. However, despite this apparently positive conclusion, the researchers’ factual findings demonstrate that there are significant gender imbalances in the private law children’s work which the courts carry out.
Men were bringing 70% of the applications generally, and of the applications for contact with a child, 96% came from the father. As a broad trend, mothers were seeking to maintain the long-term status quo, whereas father were using the courts following a recent change in the arrangements or to bring about such a change.
The researchers found no evidence of bias from the courts in the decision made – the success rate for mothers and fathers were similar (although mothers had slightly higher rate of success when seeking sole residence orders).
Despite the researchers unqualified finding that there was no evidence of bias, it was not a surprise to see that conclusion being dismissed by some. Glen Poole, writing in the Daily Telegraph, questioned whether it was fair to label a father’s application ‘successful’ if he was allowed some contact with his child, but no overnight stays. He writes:
“The entire system of parenting in the UK is set up around the presumption that mother knows best and that when parents separate there should be a primary parent (nearly always the mother) and a secondary parent (nearly always the father). The role which is reserved for the secondary parent is unfair, unequal and for many, a deeply unfulfilling way to experience parenthood.”
What’s more, success rates in isolation could be misleading. They measure only applications which were actually made, and mask cases where solicitors advised their clients that they had poor prospects of success. The relatively healthy success rate among men applying for contact might logically be attributed to realistic advice being given to fathers by legal practitioners about their prospects in the face of a biased judiciary.
It is clear that many men feel marginalised by separation and divorce, and the view that the courts are complicit in allowing this is widespread. However, recent law reform has attempted address these concerns.
There is now a statutory presumption under section 11 of the Children and Families Act 2014 that the involvement of each parent in the life of a child will further that child’s welfare. Where there is evidence that this is not the case, then the presumption is rebutted or does not apply, but now the court’s starting point will be that both parents should be involved.
The Children’s Minister, Edward Timpson, explained the goal of that legislation in 2013:
“As well as sending a clear message about what is right for children, the changes will help address the perception among parents that the courts are biased in favour of one or other parent.”
Of course, a statutory presumption itself introduces a new bias, albeit one that many will see as grounded in common sense. However, fathers may continue to find the court’s approach frustrating.
In 2009 Supreme Court case, which examined the importance of the biological parents’ involvement in a child’s life [Re B (A Child)  UKSC 5], Lord Kerr wrote (paragraph 37):
“All consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the child’s best interests. This is the paramount consideration. It is only as a contributor to the child’s welfare that parenthood assumes any significance.”
Lord Kerr’s unremitting focus on the child’s best interests does not fit entirely easily with the new statutory presumption. It does not seem likely that Judges will appreciate being told by statute law what is or is not in the best interests of a child, when they will feel that this is a question for them to determine by weighing up evidence. Further, the researchers from Warwick and Reading Universities felt the presumption will have little practical effect, since, they found that the courts were already promoting regular overnight contact as the standard pattern.
While section 11 of the Children and Families Act is careful to keep the focus on the child’s welfare, some fathers will feel they have a right to access this child – and their child has a right to live with them. Lord Kerr rejected this perspective in that same case (paragraph 19):
“To talk in terms of a child’s rights – as opposed to his or her best interests – diverts from the focus that the child’s welfare should occupy in the minds of those called on to make decisions as to their residence.”
It is likely that disputes over child arrangements will continue to be perceived as biased by some fathers, but when parents cannot agree on residence and contact arrangements, the courts must find a practical solution which serves the best interests of the child. Whereas in a financial dispute the judge has the option of ‘splitting the difference’, this cannot be done to a child! Establishing workable and durable living arrangements will rarely mean splitting a child’s time 50:50. So while one parent (frequently the mother) is taking on the role of primary carer with apparent success, the courts will still be reluctant to disturb that arrangement too greatly.
The researchers noted, with concern, that one father had felt that his importance in his children’s lives would only be equal to the mother if the court made an order that the children lived with both parents for equal amounts of time. This is an unfortunate viewpoint, but probably quite common.
If fathers are going to have confidence in the family justice system, legal professionals will need to take the lead in emphasising the need for realistic proposals (which will not generally be 50:50 sharing), while at the same time not advising their clients in a systematically discriminatory way (for example, by advising father that they cannot expect their child to live with them but advising mothers that they can). The courts can only really be judged on whether they show bias in their decisions, but solicitors and barristers must also guard against bias in their advice to clients. Using initiative, rigour and persistence when finding and presenting evidence which substantiates the role a particular parent should play and how the child’s best interests are served by their involvement should be preferred over grandstanding rhetoric about institutional bias. This will surely serve clients and their children better.