Tuesday, December 11, 2007

Why courts favour mothers

A recent visitor to Family Lore found their way here by googling the term "why do courts favour mothers when it comes to making residency orders?" Statistically, this is true, but there is no bias written into the law, as I have stated on more than one occasion previously. So why is it? Well, for the sake of an objective analysis I will assume that the courts are not simply biased (an assumption that I know some will find hard to accept), so here are my thoughts:

1. For obvious reasons, courts are likely to favour mothers where the child is very young, and when the child is a girl entering puberty. This can also mean that the mother will be granted residence of the other children, as courts do not generally like to separate siblings.

2. There are often practical reasons favouring mothers, the most common of which is work. The father is more likely to be working longer hours, and therefore in a worse position to look after the children.

3. (A controversial one.) Mothers may more often possess better parenting skills than fathers - certainly this is a common perception, which may or may not be true.

4. The ascertainable wishes of the child are, of course, an important factor, especially where the child is older. Do children favour mothers? I'm not aware of any statistics for this - perhaps a CAFCASS officer could provide an answer.

5. The risk of harm to the child is another factor, and I would suggest that this is more likely to go against the father than the mother, as there is probably a greater fear of harm by fathers than mothers.

6. Lastly, economic reasons mean fathers are more likely to leave the family home than mothers and therefore their having residence would involve a change of circumstances, giving fathers an extra hurdle to overcome if they are to get residence.

As usual, I am open to other suggestions.

5 comments:

  1. Hi John,

    Inevitably I’m going to disagree (you can’t have a good debate if we all agree). Surely if the courts favour mothers that is itself a bias; the question is whether the bias is justified or not, and you are giving reasons why it might be justified. Incidentally, since 1992 the courts have not released separate figures on sole residence awards, so it is difficult to measure the bias. Prior to 1992 about 8% of sole residence orders were awarded to fathers.

    Not all legislation is gender-neutral; again, the question is whether the lack of neutrality is justified by, for example, differences between gender roles, etc. I would argue that increasingly as society changes, and equality is accepted in most areas of life, inequalities based on gender are no longer acceptable. There are three main areas of family law which discriminate on gender grounds: the first is Section 2 of the Children Act 1989 which deals with Parental Responsibility; under this legislation mothers receive PR automatically, but fathers do not.

    The second is the legislation which determines which parent shall receive Child Benefit, the Social Security Contributions and Benefits Act 1992. Schedule 10 of this – enforced by Section 144 (3) – deals with the ‘priority between persons entitled to child benefit’ and specifies that ‘between a husband and wife residing together the wife shall be entitled’ and ‘between two persons residing together who are parents of the child but not husband and wife, the mother shall be entitled.’

    All other things being equal, the parent who receives Child Benefit is also the one who will be designated the person with care (PWC) in disputed custody cases, while the other parent will therefore be designated the ‘absent’ or non-resident parent (NRP). Under the third piece of openly chauvinist legislation, the Child Support Act 1991, the non-resident parent will be obliged to pay child support to the resident parent. Even when he cares for his child 50% of the time, he will still have to pay the resident parent a considerable amount; there is no reciprocal arrangement whereby the resident parent pays him, indeed her income is never accessed.

    As for the six justifications:

    Number 1. has all the intellectual merit of Judge Noland’s famous comment, ‘I aint never seen a calf following a bull.’ It ignores all the available research and plumps for a solution based on ‘common sense’ which when uninformed and based on prejudice is often wrong. Remember, fathers’ groups are not arguing for supremacy, but for equality.

    2. Wake up! It’s nearly 2008, not 1908.

    3. Again, read the research. In fact, why is it that family law professionals have such an aversion to evidence? Why can’t we have a flexible system based on the best available data, rather than a collection of old wives’ tales and hand-me-downs?

    4. If point 3 represents the Professor Branestawm approach to family justice, this is the Sophie’s Choice approach. CAFCASS have a scheme called the Interviewing Children Scheme (ICS) and claim 90% choose to live with their mothers, but in practice they are asked which parent they are prepared never to see again.

    5. This is possibly the worst of all the family court prejudices, again based on awe-inspiring ignorance of the facts. The presence of a father in a child’s life actually protects against harm; mothers – particularly single mothers – harm their children more than fathers do, even when you allow for their greater opportunity.

    6. This is the ‘deadbeat dad’ stereotype and it is a myth perpetrated by politicians and – it seems – family lawyers. Read the evidence. Fathers leave the family home not because of economic reasons but because of non-molestation orders and the appalling perversion of the marriage contract which means whoever breaks the contract gets the spoils.

    So the answer to the original enquirer’s question is: pig ignorance, prejudice, habit and sloth.

    Merry Christmas

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  2. Hi Nick,

    I knew you wouldn't be able to resist responding! ;-)

    Seriously, many thanks for your input. I do agree with some of what you say - remember, I am just stating it as I see it, not necessarily saying it's right.

    Merry Winter Solstice,

    John.

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  3. Am I that predictable? Oh dear!
    :-(

    Apropos spiritually-neutral greetings, this might amuse:

    http://www.thesun.co.uk/sol/homepage/news/article577297.ece

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  4. Hi John,

    like a salmon .....


    you start off with the assumption that the courts are not biased, and then provide evidence to the contrary!

    I wasn't previously aware of the written gender bias that Nick has highlighted in regard to Child Benefit (which I guess will also apply to tax credits) but I don't think that the CSA rules are in themselves inherently gender-biased, just unfair. The bias comes about because of other aspects of the welfare system, which then lead to the application of the CSA rules being gender-biased.

    Similarly, now that (I believe) unmarried fathers also have PR it is difficult to argue that the law itself is gender-biased.

    However, the written law and the process of the implementation of the law are (as I am discovering) very different - and it is the latter which fathers complain about, not the former. This is where the gender-bias of the courts (often based on the 'common-sense' approach of middle-class magistrates who 'know what's best' from their own experience).

    As Nick points out, the people making the noise are asking for nothing more than an equal share in parenting - which is what academic research indicates is in a child's best interests. Given that the courts should be looking out for the child, the court bias should really be the other way round. Why? How many 'deadbeat fathers' are going to go through the process of fighting for equality? If the answer is 'not very many' then why should the ones who do want to fulfil their responsibilities be tarred by the same brush?

    One point that Nick didn't mention with regard to gender bias is the issue of a mother moving as a mechanism to marginalise a father, a move which will inevitably be rubber-stamped by the court in 999 cases out of 1000, on the grounds that to prevent the move will upset the mother, and this is not in the child's interests.

    STH

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  5. Thanks for that SJH. I'm not going to defend the system, but in my own defence, when I assumed that it was not biased, I simply meant not biased per se, i.e. that the courts consider there are good reasons to favour mothers.

    ReplyDelete

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