This Sunday marked Father’s Day, a day for celebrating and honouring our relationships with fathers, grandfathers and paternal figures. For many families, it was the first opportunity to spend Father’s Day together in a couple of years, as a result of the pandemic. Together or apart, many fathers woke up to cards adorned with beer tankards, footballs, golf clubs and gardening paraphernalia (Dads with other interests are still desperately unrepresented by the card industry).
However, for many fathers, Father’s Day can be a painful date in the calendar, particularly if they are unable to spend time with their children or do not have as active a role in their children’s lives as they would like. Sadly, many fathers who find themselves in this position are disheartened from taking steps to change this, by a misconception that their role as a father will not be valued by the court and that the law is weighted heavily in favour of the mother. The reality in 2022 is quite different. Much progress has been made in challenging traditional gender roles in the UK, and the importance of fathers in their children’s lives is widely recognised. Family law has evolved to reflect this.
The presumption for involvement of each parent
Under the Children Act 1989, (which is the key piece of legislation for child issues in England and Wales), the welfare of the child is the court’s ‘paramount consideration’. It is also set out very clearly that, unless the contrary is shown, the involvement of each parent in the life of the child will further the child’s welfare. In other words, there is a presumption under English law that it is in the best interests of the child to have a meaningful relationship with both parents provided it is not shown that the child is at risk of suffering harm.
When deciding on any application regarding the upbringing of the child, the court must have regard to a series of factors known as ‘the welfare checklist’ which include the age, sex, background and characteristics of the child, the ascertainable wishes and feelings of the child, the various needs of the child and the capability of each parent to meet these needs, the likely effect on the child of any change in their circumstances (i.e. the status quo) and the harm the child has suffered or is at risk of suffering.
The status quo
All these factors are extremely important, but it is probably the ‘status quo’ factor that feeds the popular misconception that courts prioritise mothers. In 2022, families are increasingly diverse, but it remains the case that in many cases, the mother is the parent who has historically undertaken more of the day to day care arrangements of the children prior to the breakdown of the parental relationship. . Where an application is made to the court to decide child arrangements, the court will need to consider what routine the child is used to and will seek to ensure that any change is introduced in a way that the child can emotionally and practically adjust to, depending on their age and needs.It is often the reason why the court orders or recommends that, where the child lives with mother and hasn’t historically spent a lot of time with their father, increased contact between father and child is built up incrementally, particularly if the child is young. For example, this may mean that there is a period of day time contact initially which builds up to overnight contact at a pace which is right for that child. Equally, the court may want there to have been a period of regular overnight contact before building up to longer periods of time in the holidays. This can understandably be frustrating for fathers (or indeed mothers where the father has traditionally undertaken the majority of the day-to-day care of the children) who are eager to spend as much quality time with their children as possible. It is not; however, a presumption in favour or either parent in principle, but rather a decision based on the welfare of the children with priority being given to the child’s ability to adjust to change.
Transparency in family courts
It has long been felt by many family practitioners that a lack of transparency surrounding family proceedings has perpetuated misunderstandings about how family law decisions are made. Judges and magistrates have a relatively wide degree of discretion when making decisions but without widespread reporting, people are left to fill in the gaps themselves about how conclusions were reached. In 2021, the President of the Family Division, Sir Andrew McFarlane, published a report which concluded that greater transparency in the family courts is in the public interest and promotes greater public trust in what is being decided. Of course, this has to be balanced, in many cases, with protecting the anonymity of families and children who turn to the court for protection. Culture will not change overnight, but this marked shift to greater transparency can only be a good thing in shedding light on the reality of family court decision-making.
We live in a world of changing family dynamics in which more parents want to share caring responsibilities, and the increasingly flexible working arrangements available to many parents now are making it possible for caring responsibilities to be shared in a way that might not have been possible even a few years ago. The family courts have adapted to this reality, and the law is designed to put the needs of the child first and to recognise that it will usually be in the child’s best interests to have meaningful relationships with both parents. It is hoped that the ongoing movement towards greater transparency in family courts will enhance the public understanding and trust in the system.
For any separated parent who feels that they want to spend more time with their children or be more involved in their lives, there are a number of options of how to move forward, ranging from out of court options like mediation and collaborative law, to more ‘last-resort’ options like court proceedings and child arbitration.
Our specialist team of family solicitors has extensive experience in resolving disputes regarding children according to the particular aims and circumstances of our clients. If you would like to speak to a member of our family team, please call 020 3826 7550 or complete our enquiry form.