Does the Family Court favour mothers when deciding child arrangements?

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Does the Family Court favour mothers when deciding child arrangements? Family law specialist Grainne Fahy, partner at law firm BLM, considers how Family Court attitudes towards parents has shifted, and what this means for separating couples attempting to agree childcare arrangements today. Has there historically been a bias in Family Courts towards mothers?

The starting answer has to be, “Of course not!”, but this question is complex and an emotionally charged one for parents going through separation. The law itself does not provide for any bias in favour of the mother but this sadly does not mean it does not occur in court. Had you asked me the same question 17 years ago when I first started practising family law, I would have probably answered with a resounding, “YES!” It was the way things were back then. The law was the same, but the mindset of some Judges and the set up in households was different.

The presumption of primary carer was usually in favour of the mother. We have come a long way in that time (not just moving from ‘custody’ to ‘residence’ to ‘lives with’) and in my experience, this is certainly reflected in the attitude of the courts. Children are, of course, often the primary focus for separating couples and it is the hardest part of the process, more so I have found when I became a mother myself.

The issues that arise go beyond which parent the children should live with and extend to maintaining regular time spent with the other parent, arrangements for holidays, education, medical treatment and religious or cultural matters. Of course, as we all know, it is much better for separating parents if everything can be agreed but in the case that this is not possible, an application to the court under the Children Act is the last resort. Thankfully, mediation is a pre-requisite of any such application and that gives one last push for agreement, which is infinitely better for everyone, rather than protracted and costly proceedings where decisions about children are taken out of the parents’ hands, allowing us to focus on the other aspects of separation.

However, these applications aren’t always successful. I am painfully aware of how entrenched parents can become and how easy it is to lose sight of what is really in the children’s best interests. Changing attitudes towards parental roles We all know that the perceived ill treatment of fathers in the Family Courts led to the emergence of “Fathers 4 Justice” in 2001, and whether or not you agreed with their tactics, I must say that I extended a certain amount of sympathy to their cause. It was certainly the case that a perceived bias was felt by many fathers, and there is no doubt that this has since encouraged courts to take these fathers seriously.

So, is it still the case that the courts are biased towards mothers in applications relating to children? I don’t believe this is the case today, not to the extent it used to be, and certainly not where both parents genuinely play an equal role and have organised their lives as such. When I started practising, the notion of shared care or a “lives with both” order was simply inconceivable, but now it is common practice. That said, cases where the father has assumed the role of primary carer, with the mother assuming the role of full time breadwinner, are becoming more common – and in these situations there remains a bias to a certain extent. It would still be unusual for a “lives with order” to be made in the father’s favour in all but a few (probably extreme) cases.

That said, there has been a sea change in the success of mothers trying to relocate home with children, with this becoming less common, so to that extent the balance is certainly shifting and the important role that a father plays is being noted. Will potential biases ever be completely avoided in court? The courts must always, as we know, consider what is in the children’s best interests but I am not convinced that a bias will ever swing fully in the favour of fathers, as it did with mothers in the past. Whilst the right result may come in the end, I do strongly believe that if this does tip in the father’s favour, even to the extent of shared care, this is often after much scrutiny.

In many cases, fathers certainly start on the “back foot” regardless of where they end up and that can be devastating emotionally and of course financially. Of course, in the most extreme cases this can extend to more serious situations of parental alienation, whereby sometimes relationships are damaged beyond repair, and if a father thinks they have no hope, very often they give up trying before even considering an application to the court. That is no doubt emotionally devastating for fathers and damaging to children who find themselves in this desperate situation.

The ideal situation for children is to have a healthy and consistent relationship with both parents. Parents must do what they can to ensure the relationship with the other is nurtured and valued, and to invest heavily in the overall success of their co-parenting relationship. Despite the flaws in the Family Courts, I do believe that Judges and the Children and Family Court Advisory and Support Service do have this as a starting point. The presumption, of course, is that unless shown to the contrary, a parent’s involvement in their child’s life will always be to the child’s benefit and I think that has to be right.