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Gender bias: Discrimination in the family courts?

It’s a common complaint that fathers receive unfair treatment in the family courts. However, while this may be the opinion of some, a recent study suggests that this is not actually the case.

The study was carried out by the Universities of Warwick and Reading, funded by the Nuffield Foundation. As part of the research, almost 200 cases from 2011 were reviewed by the Warwick School of Law and the conclusion was that fathers were “overwhelmingly successful” in their applications for child contact.

Around 2011, there was a slight shift in focus – away from contact timetables and schedules and more towards shared-care agreements. These achieve much the same thing but place the parents on a more equal footing (psychologically at least), rather than one being the ‘primary carer’ or ‘resident parent’. Dr Annika Newnham from the University of Reading believes that this change in attitude does more to promote fairness between the adults than it does to achieve the best result for the child, in some cases at least. On the subject of shared-care arrangements, the report states:

“Serious child welfare concerns were expressed in four of these cases, one of which also had proven domestic violence. Given the families’ histories and parents’ problems it was difficult to feel confident that these were lasting solutions in the children’s best interests.”

To summarise the report, Dr Harding from the Warwick School of Law said:

“Whilst it’s true that mothers were usually the primary caregiver in contact applications, this was simply a reflection of the social reality that women are more likely to take on the role after a relationship breakdown.

“But there was actually no indication of any bias towards mothers over fathers by the courts; in fact we established there was a similar success rate for mothers and fathers applying for orders to have their children live with them.

“And although the overall number of residence orders made for mothers was higher than those made for fathers, this was because a large number of such orders were made for mothers as respondents in cases where the father sought contact.

“Transfers of sole residence were rare as the courts sought to preserve the status quo and where they were ordered they were disproportionately likely to be transfers from mum to dad and to feature welfare concerns and children’s services involvement.”

In any Children Act case, the best interests of the children are paramount. This is protected by statute and should always be at the fore in any litigation of this type. As long as this is the case, and the best outcome for the child is delivered, then gender statistics about application success for child contact can surely only be so relevant. The child in the centre of the litigation is utterly reliant upon the court to make the right decision for them.

If you would like to discuss a family law problem, please call us on 0161 969 3131 and book an appointment with a member of our family team.