Do family courts favour mothers?

As discussed previously, research from the Universities of Warwick and Reading suggested that there is no evidence that family courts are discriminating against fathers because of gender bias - which you can read here. Dr. Maebh Harding’s review of nearly 200 case files from 2011 concluded that fathers’ contact applications were “overwhelmingly successful.”

Yet, phrases like “family courts favour mothers” or “judges work against fathers” are still commonly heard in discussions about child arrangements following divorce. Why do these beliefs persist, and is there any truth to them?

Evolving child arrangements

Historically, perhaps, it is possible that the Courts tended to make orders in favour of children living with their mothers and spending time with their fathers. This reflected an era in which the father went out to work while the mother stayed at home, maybe working part-time but primarily caring for the children daily.

However, with more modern families consisting of two working parents, there is now a growing trend towards ’shared care’ arrangements. Courts increasingly mandate that children split their time between both parents, either during different parts of the week or on an alternating week basis. Legislation has also evolved, replacing ’Contact’ and ’Residence’ orders with Child Arrangement Orders, aiming to eliminate the idea that one parent ’wins’ custody while the other ’loses’.

what is considered when deciding child arrangements?

When deciding child arrangements, the courts do not operate under a ’maternal presumption.’ Instead, they focus on what is in the best interests of each individual child. Judges start with the assumption that both parents are equally capable of raising children of any age and that children have a right to maintain a relationship with both parents, unless there is strong evidence to suggest otherwise.

The considerations extend beyond deciding where the children should live and also cover ensuring regular contact with the other parent, as well as arrangements for holidays, education, medical care, and any religious or cultural matters.

what about cafcass?

In divorce cases involving children, the court will request a report and recommendations from CAFCASS to assist the judge in making a decision. CAFCASS provides guidance to the family court in child-related matters, typically focusing on how much time the children will spend with each parent, which days this will occur, and where the children will live.

The professionals who compile these reports are known as Children and Family Reporters. Their reports are based on in-depth interviews, during which they separately interview both parents and check the Child Protection Register in coordination with the police. They will also speak with the children, if they are old enough to express their views, to understand their feelings about the situation. While the children are not asked to choose between parents, the Reporter will assess which arrangements are in the best interests of the children.

CAFCASS are not in favour of the mother or father – their duty is to treat the welfare of the child(ren) involved as paramount and to look after the welfare of the child(ren).

summary

To close, studies in this area have concluded that there is actually no indication of bias towards mothers over fathers by the courts, and in fact, there is a similar success rate for mothers and fathers applying for orders to have their children live with them. Therefore, whilst it’s true that mothers are usually the primary carers – this is simply a reflection of the social reality that woman are more likely to take on the role and not due to any bias towards mothers or against fathers.

Related Reads:

Vardags | Research shows that family courts are fair to fathers

Vardags | Mothers told to contact their abusers for maintenance

Vardags | Do judges favour wives?