It’s not about mothers versus fathers! by John Bolch (with a postscript by Marilyn)

Family|Family Law | 18 Feb 2014 15

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The case of RS v SS, described here in this post, has reached the national newspapers. After being (wrongly) used to criticise the judge for ordering a transfer of residence on Christmas Day, as I mentioned last Friday, it is now being reported that the mother’s ‘permissive parenting’ was considered to be harmful to her sons, and led to the judge transferring residence to the father.

However, the case is also being seized upon by some who clearly feel that the family justice system is, or at least has been, biased against fathers. The more optimistic of them are saying that the case shows that the courts are finally realising that fathers can be good parents, and are suggesting that it may be some sort of watershed, after which the courts will treat both parents equally. The less optimistic are saying that it is just a rare example of a victory for a father, which will do no more than give a small amount of (usually forlorn) hope to fathers generally.

Both are missing the point. The courts are not interested in favouring mothers or fathers. They are only interested in the welfare of the children. Contrary to popular belief, there is nothing written into the law by parliament that says mothers should be treated any differently to fathers. The only thing that is important is what is in the best interests of the child’s welfare. If a court orders that they should primarily reside with one parent, that is because the court considers that that is what is in the best interests of the child’s welfare.

Some of the detractors would then say that if that was the case, why haven’t there been many other reported cases of courts finding in favour of fathers? Well, there have, but they aren’t very easy to find, as law reports aren’t classified by reference to which parent ‘won’, as that is not a factor that the law takes into account, as I said above. There are also many unreported cases of courts granting residence orders in favour of fathers.

Yes, of course it is true that courts most often find in favour of mothers, but there are reasons for this, and they are mostly due to our society, rather than to the biases of judges. For example, historically in our society that mothers have been considered to be the ‘child-rearers’ and fathers to be the ‘breadwinners’. Even if that view is no longer as accurate as it once was, it is still the case that, from a practical point of view, mothers are generally in a better position than fathers to be primary carers. More mothers don’t work, work part-time, or have work arrangements that can fit in with caring for their children. More fathers work full-time. There is also the belief in our society (whether rightl or wrong) that very young children are better off being looked after by their mothers.

Against that backdrop it would be surprising in the extreme if many more mothers than fathers weren’t being awarded residence. Of course, there may be some judges that are biased in favour of mothers, but the suggestion I’ve often seen that all family lawyers are so biased is absurd.Why would they be biased in favour of mothers, when half of their clients are fathers?

Society, of course, changes, and the law eventually catches up. For example, there has been a considerable growth in recent years in the number of shared residence orders, as the courts recognise the shift in society towards greater sharing of parental responsibilities between parents. If, at some future date, society considered that children should be reared by their fathers and courts followed that, would we then be saying that the courts were biased against mothers?

But we must remember that courts take societal factors into account within the framework of section 1 of the Children Act, which explains that the child’s welfare must be the paramount consideration. This declaration is followed by the ‘welfare checklist’, which sets out the factors the court should take into account when considering a dispute over arrangements for children. Thus, for example, a mother that doesn’t work may be in a better position to look after a child’s needs than a father who does.

And it is exactly that framework that Judge Harris used to come to her decision in RS v SS. It was only ever about the welfare of the two boys, not about the mother versus the father.


Thanks John. Here is a link to an article by John Bingham in the Daily Telegraph yesterday where I commented on this case.


John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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    1. Steve says:

      I am 56 years old the vast majority of my friends cook, clean and look after the children on an equal basis. It has been instilled in the media that men are worthless as parents, husbands and child rearing equals since my teens. Experience tells me different is the law and the judges really that slow to comprehend that men and women are equal.

    2. Tristan says:

      The only thing this case proved is that a mother has to be worse than a total basket case to get her residency reversed.

      I’ve already postulated the view that the case reinforced received judicial wisdom which imposes impossibly high barriers against fathers who seek residency orders.

      If the welfare of the child was a court’s main preoccupation then the judicial practice of awarding custody to mothers in 90% plus of cases would have ended long ago. There would today have been a far more even balance between mother and fathers in making those decisions. The difference is accounted for by bias. Judges routinely make the basic assumption that mothers have superior claims to custody as they are somehow uniquely better at raising children, irrespective of a father’s wishes or the mother’s own domestic situation which may be vastly inferior to the father’s. In actual fact there are many good studies going back as far as the 1980s and ’90s which show that children, boys particularly, grow up to be more confident, outgoing and more successful at school than those who reside with their mother. That the courts have long ignored such studies helps to confirm the view that pro-mother prejudice, not child welfare, is the real driver in judicial decision-making.

      The corruption of children’s wishes and feelings by inept Cafcass officers with their own biased assessments, merely adds grist to the judicial mill.

      John’s analysis above could, therefore, not be more wrong.

    3. Pete says:

      John, if the system wasn’t biased then why would the court take half of my pension off me when it will have no benefit at all to my daughter even though previously my ex had turned down the chance to get her own pension . They are quite happy to give the woman enough so they can be mortgage free for the rest of there lives and treat a one year old the same as a fifteen year old which do not have the same needs.
      John you also say ” I’ve often seen that all family lawyers are so biased is absurd. Why would they be biased in favour of mothers, when half of their clients are fathers?” My solicitor closed a book he had with him and said ” well as you’ll die at 70 her needs will be greater than yours as she will live longer”. I even know someone who’s ex wife left him with nothing except the two children, at the end of the day men are just cash cows to the legal profession.

    4. JamesB says:

      Half the customers of divorce lawyers are men, so what? Lawyers lose more cases when they represent men, then. Except it is not about winning or losing, as the lawyers tell the men while the courts fleece them and tell them it is for the best, when it is not.

    5. JamesB says:

      I also take issue with the statement that half of divorce lawyers customers are men. Men are more likely to be self represented or run out of money or be less likely to be taken on as deemed a cost risk to lawyers.

      On my divorce I ran out of money and all the final orders have my ex’s solicitors reference number in the box on the page 1 but no details for mine (as I could no longer afford and did not have one). I also remember the look on the face of a couple of lawyers I went to when I advised the other sides case (stay at home Mum). They didn’t want the case and thought it a hiding waiting to happen and a potentially unhappy client (man) potentially unwilling to pay their costs and potentially the other sides for the privilege of being stitched-up.

    6. JamesB says:

      Dubious privilege indeed.

    7. Luke says:

      “Of course, there may be some judges that are biased in favour of mothers, but the suggestion I’ve often seen that all family lawyers are so biased is absurd.Why would they be biased in favour of mothers, when half of their clients are fathers?”

      I don’t know why there judgements are so shamefully biased – but they ARE – this is from THIS blog:
      The research also indicates that the vast majority (97 per cent) of ‘resident’ parents who continue to live with their children following divorce or separation remain women.

      97 freaking per cent !!!!!
      If it was 75%-25% a case can be made for reasonableness – but as it stands if a woman is alive and can:
      (a) walk and chew gum at the same time
      (b) is not severely mentally disturbed
      (c) is not in prison
      – she gets custody – period.

    8. Paul says:

      If courts and judges were not biased against fathers then this mother would not have been granted residency in the first place. Read the judgement carefully and note the history. See how at one point, despite already creating an inadvertent trail of evidence to indicate her unsuitability as custodial parent, a judge awards the mother custody. The father is left with a pitiful and wholly inadequate contact order which the mother promptly undermines. A completely unsatisfactory parenting situation then drags on causing harm to the boys. Evidence regarding the mother’s unsuitability as custodial parent continues to pile up until even a thicko judge realises the game is up. But see what the father and his children and the school and everyone else has to go through before the final curtain comes down on the mother’s woeful performance.

      That’s down to the courts and probably inherently biased Cafcass officers who seem pathologically unable to accept a parent is a screwball. I am guessing here but it seems the mother is non-white so everyone has to tread on tiptoes for fear of being called the obvious. That causes them to make allowances which under normal circumstances they wouldn’t.

      The other factor I sense is that when fathers go to court, their expectations generally speaking, are low. Time and familiarity with the pro-mother reputation of courts effectively stifles a father’s ambition regarding custody. So they accept weak contact arrangements by consent orders which are neither good for the children or them.

      I regard Pauffley’s judgment as morally dishonest in that she fails to acknowledge the active role of the courts in harming the development of two young boys by allowing the mother’s shenanigans to go on for so long.

    9. JamesB says:

      The title of this post is provocative as that is exactly how very many if not most people think divorce is when lawyers are involved.

    10. JamesB says:

      Probably posted to be provocative and get a response with people posting.

    11. Paul says:

      The hon. judge was Harris not Pauffley but error aside, the name of the judge is barely relevant as the same old arguments always seem to get trotted out whoever’s mouth they emanate from. It’s never the courts fault that a case blunders on until the final catastrophe occurs.

      Makes you wonder what’s worse, case like this one or those reprehensible cut and paste jobs that magistrates do for social services.

    12. Stitchedup says:

      Actually, the fact that a case of a mother losing a custody battle can attract so much attention and make the telegraph says it all. One case in millions that go the other way and it is somehow seen as evidence that there is no feminist bias in the family courts….. it would be laughable if it weren’t such a serious issue!!

    13. Stitchedup says:

      I was told by a solicitor that I would be seen as having the most earning potential simply because I was a man. This was despite the fact that my ex is degree qualified with a good stable job, 7 years younger than me, I had just taken a job after being out of work and she was earning nearly twice my salary. Hmmm???

    14. Anonymous says:

      I was told by my solicitor that being up front and honest about my wife’s unreasonable behavior would get me no contact. Meanwhile, the judge was very pleased to entertain all sorts of dishonest allegations against me for several months.

      I could go on an on, but the above posts have covered some of those other points already.

      Sadly, I don’t think I’ve every read a decent honest unbiased article by the above author, and I’m deeply suspicious of why he has been asked to contribute to this blog.

    15. Pete says:

      “I was told by a solicitor that I would be seen as having the most earning potential simply because I was a man”

      funny old thing I was told exactly the same even though I had a letter from my employer saying that I was out of a job when I hit 55 [4 years time] . My ex said she knew different so the judge dismissed the letter without even reading it , apparently this is called judicial discretion not bias.

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