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 in this post 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.
Photo by absolut xman via Flickr under a Creative Commons licence
John Bolch is a family law blogger