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Are family courts biased against mothers… or is it fathers?

A serious topic

Are family courts biased? First of all, apologies if you feel that the title of this post is somewhat flippant. I do understand that this is a serious topic and that many people have very strong feelings upon it. In both directions. But I still feel that the title is appropriate, as it reflects the ambiguous nature of the debate as to whether or not the family courts show bias towards mothers or fathers.

I read a great deal about family law, and the opinions of those who use the family courts, in various capacities. And I can tell you that for every opinion in favour of one side of the debate there is another opinion in favour of the other side.

Of course, it would be easy to conclude from that that the ‘truth’ lies in the middle: that the family courts are not actually biased one way or another. But that would involve a dereliction of the duty we surely have to properly investigate what is, as I say, a serious topic, which can have extremely serious consequences.

Okay, all of that was a slightly long-winded way of saying that I thought I would have a closer look at the topic I highlighted in my weekly review post here last Friday: the recent discussion in the letters section of The Guardian newspaper regarding the suggestion that “the disproportionately male judiciary is more likely to rule against abused women and children”.


The suggestion was contained in an opinion piece by deputy opinion writer Sonia Sodha, which appeared in the paper on the 5th of March. As I explained on Friday, one of her particular concerns relates to what she called “the junk science of “parental alienation syndrome”, which she suggests is being too readily accepted by courts as a fact, when raised by fathers in response to abuse allegations by mothers. She says:

“There is evidence of an increasing willingness in recent case law to transfer the residency of children from “alienating” mothers to their fathers. As a result, women have to think carefully about bringing abuse allegations to court – even where they may be evidence – in case they get accused of making false claims and lose custody as a result.”

And she concludes with the damning:

“…putting these decisions in the hands of an unaccountable and disproportionately male judiciary, untrained in domestic abuse, some of whom seem to have no problem slipping their social biases into the courtroom, is bound to cause problems. Given the capacity for errors in human judgment, of course, there may be fathers who have heartbreakingly had access to their children unjustly restricted. But the balance of evidence points to a system that is biased against abused women and children, not innocent, falsely accused men.”

This led to retired circuit judge His Honour Glenn Brasse leaping to the defence of the judiciary, in the letters column of the 9th of March. He said:

“Sodha … suggests that the system is weighted against women. The reverse is true. Legal aid is available to any woman who has evidence of physical or sexual abuse. The anomaly is that while the accuser may have legal aid representation, the accused, usually a man, does not.”

And he went on:

“Sodha refers to a “disproportionately male” judiciary, but that was certainly not the case in the central family court, where I sat. The “parental alienation syndrome” to which she refers may or may not exist as a phenomenon, but it is, sadly, true that some mothers turn their children unfairly against their fathers, just as often as is the converse.”

But there were other voices who agreed with Ms Sodha. On the 11th of March, for example, a letter from Jane Fortin, Emeritus professor of law at the University of Sussex, was published. She says that judicial assumptions that children reluctant to have contact have been brainwashed by the non-resident parent seem to be on the rise. However, she warns that increased judicial willingness to contemplate transferring children’s residence from “alienating mothers” to their fathers’ risks overlooking abuse by fathers and transferring the child into the care of the abuser himself. She concludes:

“A child at the receiving end of such an order might justifiably feel completely betrayed by the court system.”

Indeed they might.

A thin tightrope

As can be seen, it’s a desperately thin tightrope that the courts must negotiate, and getting it right in every case is obviously an impossibility. Maybe there is bias, maybe there isn’t. But the obvious problem with suggesting that there is is that it runs the risk of pushing judges over the other side of that rope. Just as we must remove any bias from the minds of judges, we must also allow them the freedom to deal with cases without any preconceptions.

You can find the original Guardian article here, and the letters to which I have referred here and here.

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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, with his content now supporting our divorce lawyers and child custody lawyers

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  1. Mud says:

    I have put much thought into this debate as many have who work within the family law circuit and those of us men and women who have been mistreated and incorrectly judged. Being a father trying to use the system, it would be very easy for me to say that the system is heavily biased against fathers. The mother of our child has been granted legal aid and all the other support that comes with being a victim of domestic abuse, all with no evidence. At the same time, other than finally meeting a solicitor that for once isn’t treating me as an abuser by default, nobody is even willing to listen to my side of the story. Not even at a fact finding hearing. Opinions are formed and then judgements based on those formed opinions. In my personal experience there is definitely a bias but I don’t think it’s gender based.
    As humans we judge. Whether we like it or not. We make those judgements based on gut, experience and what we can see in front of us. When presented with an individual that is allegedly a horrible person, we are all far too eager to feel like a hero and chastise the alleged perpetrator. Whether that be a man abusing women or a woman abusing children, no matter the abuser, the judgement and subsequent actions are always the same. The way you look and present yourself seems to be the strongest part of any persons case in family court. The better the actor you are, the better the outcome. That is something that will never change until we treat everyone with the same level of respect and not jump to conclusions that effect our children dramatically.
    Sadly there is far too much information available to the general public and professionals about personality disorders. The vast majority of it being about men. Trust me. There is no help for men dealing with a difficult female. That is not the courts. That’s human beings. Sadly we are now in a situation where people that are distraught, depressed, obviously emotional and even sometimes suicidal, are being judged as having a personality disorder. I stress. Anyone that has had their child taken from them will be irrational and not themselves. A judge at court used my son to try and expose (I suppose) my narcissistic rage. But it’s ok. You don’t need to respect abusers or have any empathy for them because an opinion has already been formed that they are obviously not a very nice person and therefore “probably”……..
    It boils down to whether it’s all a facade or not. Nothing to do with gender.

    As far as both genders complaining post court proceeding. Well that’s obvious. Both parties will always want more time, access, money, justice, etc. There’s simply not enough cake to share and nobody is going to be happy when we wreck families.

    Parental alienation has become a huge viscous circle but it most definitely exists. Let me give you my example. My son turns four soon. I am just waiting for the day that I won’t be allowed to see him again. If my son says he does not want to visit his father then no court will force it. If he doesn’t want to see his mother then it’s obvious the abusive perpetrator has caused it. But Parental Alienation most certainly does exist. The people that will decide a small child’s future will have forgotten the case by the time that child is an adult. Pats on the back all round in the courts and then twenty years later bailing your son out of a police cell for drugs or violence. See where I’m going? It’s a can of worms that should have never been opened until we can “judge” more effectively. Thankfully I’m a wife beating, lager drinking helicopter mechanic, so that problem falls on the professionals that are respected to make those decisions and not stupid people like me obviously.

  2. Bob says:

    As a parent who has gone through 5 years of family court and 2 proceedings and then finally told that they could not help anymore as my child’s understanding had become enmeshed with the mother’s (who the judge recognised did not exercise her parental responsibility to facilitate the ordered contact), I have experienced both the family court’s and CAFCASS’s reluctance to take action against the resident parent’s willful behaviour in discouraging contact between the child and the non-resident parent. The root of this problem lies with the initial presumption that the mother will be the main parent. This sets up the status quo which family courts are always unwilling to change, i.e. fathers have an uphill struggle before even stepping into court. There are some parents who split up, whilst still having the children’s best interests, and hence avoid court and arrive at an arrangement much closer to 50/50 than the usual every other weekend court order. Mothers are aware that going to court will reduce the contact with the non residential parent to the usual court order of 4 days a month. Introducing 50/50 as an initial presumption will to a great extent remove this incentive for the mother and prevent lengthy litigation which we know can further damaging to the children, often leading to them siding against the non-resident parent.

    • John says:

      Bob, 50/50 as initial presumption will make a massive difference, takes away the incentives of alienating parents, especially when a lot of it is down to money, to gain custody of children in order to get the main marital property.

  3. JamesB says:

    I read the post and feel compelled to write. In the Greek Roman way saying my history 1st. To court over 50 times against this stuff. Some things I have noticed from a lot of experience and children.
    1. Women can be difficult
    2. Men can be difficult
    3. Judges have very little evidence to make decisions with
    So, they do a difficult job, perhaps they are given the job of an impossible job given that the lawyers aren’t paid to support the children, but their clients.
    My biggest issue is with those who say we should all just go gay and let the immigrants take over. No, I think I agree with the original poster, we should do better by the children and see through the nonsense. How to make two parents co parent? I think the answer has to be scrap child maintenance and parenting orders. That way both sides have bargaining power. As it is fathers have no bargaining power and literally no rights. If you say pay to see kids at least kids get to see their Dads and get some money and co parenting and communication between the parents. The lawyers arent helping neither the Judges, would be best left to the parents.
    I.e. as it says in the Bible re marriage, no one should come between man and wife. No one should come between father and mother. Like some Judge telling people how often they should see children they dont even know and havent seen and know nothing about via unenforceable orders, paying thousands for, that is the biggest lie and brings the law into disrepute and is no place for it, unless there is abuse, most of the time abuse in family court is made up.

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