Child Residence: Do English Courts Always Favour the Mother?

23 February 2021

When a court decides who a child should live with after the separation or divorce of their parents, they will always put the child's best interests first and will not automatically favour one parent over the other. So in short, English courts do not always favour the mother. We explain how it works.

When getting divorced or separating, the primary concern of many parents is how the children will be affected by the separation, where they will live and how often each parent will see them.

For many parents going through separation, they will decide to share time spent with their children. Although a high percentage of parents can reach an agreement amicably, between themselves, it's sometimes necessary to take the issue to court if the parents can't agree.

Child residence - how do the courts decide where the child lives?

In English law, what was previously known as child custody is now referred to as a child residence order.

When parents cannot come to a mutual agreement about residence and childcare arrangements, the courts will make a decision on their behalf. This includes decisions about who the child should live with and how frequently they spend time with the non-resident parent.

The court will take individual circumstances into account before making a residency order, which is the court ruling on where a child will live. This can range from joint residency, where time is split equally between parents, to specific visits during weekends and holidays. Residency orders last until the child turns 16, although they can be extended in exceptional circumstances.

Courts act in the best interests of the child

There is a common misconception that courts favour mothers. In recent years there have been many cases which demonstrate that the courts place just as much priority on the father's position as they do the mother's.

Historically, there may have been assumptions that mothers play the predominant role in their child's lives, and for that reason a child should not be separated from their mother. However, just as gender roles have evolved in the workplace, parenting roles have changed. The court is aware of this and will not make any decisions based on assumptions, but instead pays attention to the individual needs of the child and their circumstances.

In 2001 the Fathers 4 Justice campaign was set up by a father to challenge the bias he felt was shown to mothers during divorce and child residence proceedings. The rapid response highlighted that many fathers felt the same and prompted change. This movement, along with others, helped family law in the UK evolve to where it is today.

The standard is not one of mothers against fathers, but instead, what is in the best interest of the child. There is no bias in law, and groups of both mothers and fathers will, at some point, have felt let down. The best way to ensure that your rights have been fully represented is to get expert legal advice from a Family Law Solicitor who can support and guide you through the process.

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