The Children Act is an act of kindness

Liz Trinder, Professor of Socio-legal Studies, says there is no systematic bias against fathers in family courts, so no need for ministers to tinker.

This piece first appeared on the Guardian website on 6 Feb 2012.

Should there be a change in the law on shared parenting after relationship breakdown? The government has now published its long-awaited response to the Family Justice Review chaired by David Norgrove, which spent 18 months considering exactly that. The Children Act 1989 currently requires that the “child’s welfare shall be the paramount consideration” in family court decision-making. The Norgrove review decided against a stronger statement on shared parenting, based mainly on the Australian experience where shared-care legislation had not worked as intended and had shifted the focus from children’s needs to parent’s rights.

Although the report was widely welcomed by those who work within the family justice system, it was not by fathers’ rights groups. And now the government has rejected the recommendation, with ministers to formulate “a legislative statement of the importance of children having an ongoing relationship with both their parents after family separation, where that is safe, and in the child’s best interests”.

In theory that sounds entirely sensible. However, we know from the Australian experience that this type of formulation makes it harder for courts to focus on the needs of an individual child rather than the rights of parents. The Norgrove review understood this. So why is the government not listening?

One powerful driver for the government’s position appears to be an attempt to address public perceptions that the courts don’t recognise the joint nature of parenting. This seems to be based on the repeated claims of fathers’ rights groups like Fathers 4 Justice, frequently repeated in the media, that the courts are biased against men. But there is no evidence to back claims that fathers are disadvantaged in court. Under the Children Act both fathers and mothers have parental responsibility, incorporating rights and responsibilities for their children. Since the mid-1990s courts have bent over backwards to try to ensure contact takes place.

In 2010 the courts refused only 300 of 95,000 such applications. Careful research based on analysis of court records finds that the great majority of fathers get the contact they seek and often do better than mothers. Indeed, the contact presumption is so strong that research studies have found concerns raised by mothers – especially about domestic violence – are not being addressed adequately by the courts.

The research evidence is clear, then, that the claim of systematic bias against fathers is a myth. Indeed the justice secretary, Ken Clarke, said on the Today programme that he does not believe there is any bias. So it is worrying that this entirely unnecessary change is likely to lead to poorer outcomes for children.

Behind much of the debate is a set of unhelpful myths about wicked, vengeful women and innocent, bewildered fathers. While these stereotypes might exist in small numbers, they do not stand up to empirical scrutiny. As Oscar Wilde put it “the truth is rarely pure and never simple”. It is no surprise that lawyers, judges and researchers who hear all sides of the family story – men, women and children — do not support changes to the law.

Only 10% of separated families go to court about contact. They are a highly conflicted group, with multiple problems and where both parents feel unheard. Finding ways to make contact or shared parenting work for these children is not about giving parents more rights but about helping them fulfil their responsibilities, and finding ways to give children a voice. The beauty of the Children Act 1989 and its unadulterated welfare principle is that it focuses on an individual child and their unique needs, preferences and circumstances. That is a principle we must treasure.

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