Child Residence: Do English Courts Always Favour the Mother?

27 February 2017

When deciding who a child should live with in separation or divorce cases, the Court will consider what is best for the child, rather than automatically favouring one parent over the other.

One of the most important questions when a relationship between parents breaks down is: 'what about the kids?' Wondering how they will be affected by the separation, where they will live and how often you get to see them can sometimes be harder to adjust to than moving on from the relationship.

For any parent going through separation, the reality that they will need to split the time spent with their children can add stress to an already difficult time. Although a high percentage of parents can reach an agreement themselves, it's sometimes necessary to take the issue to Court, particularly when relationships turn sour.

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

When parents cannot come to a mutual agreement about child care arrangements, the Courts will make a decision on their behalf. This includes decisions about where the child should spend their time and how frequently the child will be 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 can be extended where there are exceptional circumstances.

Courts Act in the Best Interests of the Child

There was a common belief that Courts favour mothers, but in recent years there have been many examples to show that the Courts place just as much priority on a father's position as they do the mother's. The law itself is not written to impose bias, but in the past, decisions in the Family Courts have reflected the gender bias that exists in society.

There 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 evolved in the workplace, parenting roles have changed. The Court is aware of this and so does not make decisions based on assumptions, but instead pays attention to the individual needs of the child.

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 recognise that a father can be the primary caregiver, just as women can now be the breadwinners.

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 avoid feeling as though your rights have not been fully represented is to get expert legal advice from a Family Law Solicitor who can set your thoughts at ease.

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