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Are mothers always awarded residence of the children?

 
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A brief consideration of sole residence awards to mothers and fathers.

Fathers and fathers’ groups often complain that the family justice system is biased against them and that residence of children is always awarded to mothers.

There is no gender bias in the legislation – other than in the rule which confers parental responsibility – and the courts are obliged to make orders which are in the best interests of children and don’t favour either parent.

There is societal bias, however, which views mothers as more capable of caring for children, especially younger children, and further bias which regards men as inherently more aggressive and violent.  This becomes relevant in family cases when parents are fighting in an adversarial system to prove themselves a better parent than the other.

Some campaigners argue that, as the playing field is not level ,fathers should be treated preferentially in the family courts,

“In the culture that we are currently working in, we have to plan for delivery of more specialist services for fathers, because it is fathers that currently face the highest barriers to carrying out those responsibilities (Woodall, 2012).

This is a controversial position, and one the fathers’ groups would not dare adopt!

Actually determining whether the courts more often award sole residence to mothers than to fathers is difficult to establish.  On 3rd November 2011 the Daily Mail made the claim that 93% of ‘custody battles’ were won by mothers (Shipman, 2011).  The truth-seeking website Fullfact.org challenged this figure, which is quoted by some fathers’ rights groups (citing figures from 1994), but found no evidence for it (O'Neill, 2011).

Prior to the Children Act 1989 the courts recorded how custody orders were distributed.  Averaging the years 1985 to 1991 we get these figures:

Mothers                       73.7%

Fathers                        8.1%

Joint                            18.2%

Thus of orders for sole custody, 90% were made in favour of mothers.

Since the implementation of the Act the figures have not been made available.

The Mail’s statistic probably comes from the Office for National Statistics which had reported that 93.1% of single parent households were headed by mothers (Office for National Statistics, 2012), an entirely different statistic.

The best evidence for how this distinction is distributed across the genders is from the CSA.  In 2011 95.1% of non-resident or ‘absent’ parents were fathers.  Note however that this figure includes couples with equally shared care of their children (Child Maintenance and Enforcement Commission, 2011).

A 2006 study by S. Kielty at the University of East Anglia put the figure at an alarming 97% (Kielty, 2006).


The evidence is that fathers are just as able as mothers to care for children as mothers are, so the huge discrepancy is disturbing.

Sources

Child Maintenance and Enforcement Commission. (2011). Child Support Agency National Statistics June 2011.

Kielty, S. (2006). Similarities and differences in the experiences of non-resident mothers and non-resident fathers. International Journal of Law, Policy and the Family.

Office for National Statistics. (2012). Families and Households 2001 to 2011.

O'Neill, G. (2011, November 4). Are 93 per cent of "custody battles" won by mothers? Retrieved from Fullfact.org: http://fullfact.org/factchecks/custody_battles_won_by_mothers-3096

Shipman, T. (2011, November 3). Betrayal of the family: Despite all those Tory promises, fathers and grandparents will still be denied the right to see children after a divorce. Daily Mail.

Woodall, K. (2012, June 19). Why gender matters: balancing support for mothers and fathers after family separation. Retrieved from Karenwoodall.wordpress.com.

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