Are the Family Courts Really Biased Towards Women?

I will quite readily admit that throughout my period as a single dad, I wore the badge with pride.

When my ex-partner left the family home I was determined that my daughter would in no way go without anything she was already accustomed to. While I’d always done a lot around the house I was suddenly in the position of having to do it all, and I quickly drew up a mental roster of everything I’d need to do to keep the ball rolling – cleaning, laundry, school uniform ironing, packed lunches, sewing ballet shoes, shopping. There was no way I wasn’t going to handle it all, and I did. Although it left me exhausted!

I also quickly became used to the look I’d get when people learned I was a single dad. A slightly raised eyebrow, perhaps a small smile. Certainly while being a single mum is considered to be entirely ‘normal’, single dads are a rarer breed. ONS data from 2012 shows that of the UK’s 400,000 single parent families, only 13.5% of these (54,000) are single dads. A BBC report suggested that in 2011 men accounted for just 8% of the UK’s single parents. My wife has confessed that when she first learned I was a single dad she automatically presumed that mum had died!

And when you are a single dad, there are plenty of times you face being a little marginalised. Whether it’s the ballet teacher talking about asking the “mums” for help at the summer show, school newsletters mentioning “mums” in the playground or Brownies asking “mums” for help sewing, barely a day passed when my apparent abnormality was not thrust upon me.

Luckily I wasn’t especially offended by any of it. I’m a contrarian by nature so took no small satisfaction in proving that I could be every bit the mum my daughter needed. I get the impression my daughter quite enjoyed it, too.

The one time such stereotypes were arguably harmful, however, was during my custody case.

My case was not heard by a judge but instead by three magistrates. Three elderly female magistrates. The decision we got on the day basically dismissed all of my concerns and gave my ex-partner all of the contact she had requested, with none of the safeguards I had argued for. My barrister was fuming, and voiced her belief that the magistrates had found in favour of mum because of her gender very loudly down the phone when the trio passed her on the way to the Tube after the trial.

I’ll never know whether my gender factored against me in court. Nor will I know if a judge very speedily granted me an appeal because they believed that might have been the case. It’s hard not to suspect, however.

The law itself does not include any legal bias toward the mother over the father. By law, custody decisions are made purely based on what is best for the child. But any legal process is conducted by people, and people are biased – even sometimes those who professionally obliged not to be so.

It’s worth noting, however, that any potential bias toward the mother is in many cases perfectly justified. In traditional family units it is, whether you like it or not, often the mother who spends more time with the child and who does more of the parenting. This will be a particular norm among older members of the judiciary, of course.

But in these modern times it’s no longer reasonable to assume this is always the case. Certainly, both myself and my ex-partner worked, and I was the one who did the nursery drop offs. I was also the one who stayed at home when my ex-partner went out with work friends. I wholeheartedly believe that it’s absolutely true that in my case, I was the primary parent, and had been since the end of maternity leave. Communicating that to the court, where time is precious and the chance to talk is limited, is not easy – especially when the other side is presenting a different picture.

There are certainly plenty of people out there who very firmly believe that gender bias is a very real thing in UK courts. Pressure group Separated Dads states simply that: “The important fact to remember is that, in the majority of cases, the father will not be granted custody of the child by the courts. Individuals and groups have complained about this bias of the courts for several years, but it’s simply a fact that unless the circumstances are exceptional, the child or children will stay with their mother under a residence order.”

More famously, Fathers 4 Justice was founded on the experience of Matt O’Connor who was denied access to his two sons leaving him, in his words “shocked by the cruel, degrading and inhuman treatment of dads in Britain’s secret courts”.

There is contrasting evidence, however. A 2015 study by the University of Warwick concluded that family courts do not discriminate against the father.

“Whilst it’s true that mothers were usually the primary care giver 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,” author Dr Maebh Harding said.

“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.”

Indeed, in 2014 the Government pressed through The Children and Families Act 2014, Section 11 which enshrined in law the desire for “parental involvement”, which ordered courts “to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare”. In other words, parental contact should not be blocked unless absolutely necessary.

Specifically, Section 11 required that courts regarded the presumption of shared parental involvement when considering an unmarried father’s application for parental responsibility. Note however that these provisions are primarily designed to ensure that dads retain access in situations where mum has custody.

In conclusion: Legally speaking there is no institutional bias toward either gender. However, sociological norms mean that it is or has been more common for mothers to do the majority of the parenting, and the result of this is that there is a presumption that mum will get custody. If you’re a dad and in a situation where your claim for custody is a rightful one, there’s no legal reason why that shouldn’t be the case. Anecdotal evidence, however, suggests things may not quite be as straightforward as they should be.

This article is by Ben Parfitt, a former client of BLB Solicitors. He writes from personal experience. For legal advice on all issues to do with divorce or separation, please contact the family team at BLB Solicitors.