Bias towards mothers within the court system; fact or fiction?

I’m writing this blog post having just ironed and hung up my outfit for court tomorrow. To say that I’m excited for two days in Liverpool Family Court is an understatement! So, I’ve been doing a bit of reading around family law in preparation. One of the things that has become clear to me is the perception that there exists a bias towards mothers within the family court system so I’ve done some research to find out whether this bias actually exists, or whether it is just a myth. It is important to note that in writing this post I am simply giving my opinion.

I should start by defining a mother and a father, in the eyes of the law, so that there is no confusion here. As defined by the Human Fertilisation and Embryology Act 2008, Section 33(1), a mother is: “The woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child.”. Defining who the legal father of a child is, is a little more complex. There are several different ways in which a man may be legally considered the father of a child:

  • That he is genetically the father of the child.
  • That one of the legal presumptions of paternity applies and has not been rebutted.
  • That he is a father by virtue of one of the statutory provisions governing assisted reproduction.
  • That an adoption order or parental order has been made in his favour.

 

The next issue worth noting is who has parental responsibility. A mother has automatic parental responsibility; having sustained the child throughout pregnancy. A father, however, does not have this automatic responsibility. Although morally, of course, you would assume that both parents are equally as responsible for their child. The adoption act 2002 provides that fathers who are registered as father of the child on the birth certificate, have automatic parental responsibility. A father and mother can also enter a parental responsibility agreement under S4 (1)(b) of the Children Act 1989. This gives both parents responsibility. Furthermore, if a man is not registered on the birth certificate, and unable to obtain the mother’s consent for a parental responsibility agreement, they can apply under section 4 of the Children Act 1989 for a parental responsibility order. Finally, Section 11 of the Children and Families Act 2014 was arguably a further step towards equality towards parental responsibility, giving consideration to “each parent” in terms of parental involvement.

Having determined who has parental responsibility, we can now examine whether there is a bias in how the courts decide Child Arrangement Orders (as defined in the Children Act 1989, Section 8.). Ultimately, the court must make its decisions based on the child’s welfare- providing that this is a straightforward case, with no risk to the child. If there is no evidence that involving the parents in a child’s life will not promote the child’s welfare, then the courts will presume that it is in the child’s welfare to be involved in their life. This may be through direct or indirect contact (letters, phone calls etc). The explanatory note, Appendix A, of the Children Act 1989, gives examples of how this would work. It can be concluded, that on reading the relevant legislation, there is no appearance of bias towards either parent in the process of determining a Child Arrangement order.

Statistically, however, a very different picture is painted. The 2016 families and households statistics published by the Office For National Statistics, shows that 86% of single parent families in the UK were headed by females, leaving just 14% of single parent families headed by males. The reason for this may simply be that women are more likely to take responsibility for children in the breakdown of a relationship due to their natural maternal instinct. It may also be that stereotypically, women have careers that they are able to fit around a family, whereas men do not. (Please note, this is a stereotypical view, and not my own).

Another factor that may contribute to these statistics is the divorce system in the UK. We currently operate a fault based divorce system, meaning that when a married couple applies for a divorce, they have to prove that their marriage has broken down through either adultery, unreasonable behaviour, desertion, separation for a period of two or more years if both parties can agree in writing that this is the case and they are happy to proceed with divorce- this is outlined in the Matrimonial Causes Act 1973. One of the major problems with this approach is that in applying for a divorce, blame for the breakdown of the marriage is specifically allocated to one party which can obviously cause tension and further conflict between parties. Leading to one parent playing more of a role in the upbringing of their child than another, and going back to the stereotypes previously mentioned, the mother is more likely to take this role. It could be suggested that a move to no fault divorce may lessen tension between parents and lead to a more equal parenting approach.

In conclusion, although the law is extremely black and white in giving both parents contact with their children, and ultimately putting the child’s welfare first, this is not reflected in statistics. The statistics have changed very little in 20 years. This may be due to the practicality’s of looking after children, and personal choices for families, rather than the way that the courts have decided, as the legislation surrounding the matter is completely unbiased. Whilst defining a parent and who has parental responsibility the law appears to be slightly in favour of mothers, as it is easier for them purely down to the genetic aspect to be considered a child’s parent, the law does not, in cases of child arrangement orders, favour either parent.

 

 

In writing this post, I have relied on statistics published by the Office for National Statistics, and also the book ‘Family Law: Seventh Edition.’ written by Jonathan Herring. Thank you to Carl and Matthew for proof-reading for me!

 

 

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