The Law Privileges Mothers and Unfairly Discriminates against Fathers on Every Children Issue - Essay Example

The law privileges mothers and unfairly discriminates against fathers on every issue relating to children.” Although the courts are supposed to consider the welfare of the child as paramount1 when making decisions as to residence orders2, contact orders3 and parental responsibility4, in many ways mothers are given preferential treatment to fathers. In many cases this tends to occur because mothers are viewed as the nurturers of children and are considered to be better at caring for them. Reality can often paint a different story and it is not uncommon for mothers to ill treat children5 or to be incapable of giving the child the care it needs. Married fathers are treated slightly better than unmarried fathers when it comes to issues regarding the children, however when relationships break up it is generally the father that loses contact with the child or is restricted in the amount of contact they can have. Infrequently fathers are given preference over mothers in residence orders6. In general terms the courts have to have substantial proof that the mother is incapable of looking after the child before an order is made for the father to have care and control of the child. In the UK fathers can acquire parental responsibility either by being married to the mother of the child at the time that the baby is born or by the registering of the child jointly with the mother. Married fathers are entitled to register the birth of the baby without the mother being present and will be automatically entered onto the birth certificate of the child even if they are not present when the child is registered. Unmarried fathers will only appear on the birth certificate if the mother of the baby agrees to the father’s name been entered on the birth certificate. Since the introduction of the Adoption and Children Act 2002 an unmarried father can have parental responsibility if his name appears on the register of births. The effect of the 2002 Act led to the Children Act 1989 being amended so that there is no longer a requirement that the father has to prove his genetic fatherhood in order to be entered on the birth register. The acquisition of parental responsibility entitles the father to the right of consultation with regard to any decisions that are to be taken in respect of the welfare of the child7. In cases were the mother is incapable of caring for the child a father with parental responsibility can apply to the courts for a residence order whereby the court can insist on the child residing with the father8. In such cases the court can sometimes grant a joint residence order which giving the mother and father equal rights over where the child will live. S111 (4) (2A) of the Adoption and Children Act 2002 allows the court to remove parental responsibility. Under this section it states “(2A) A person who has acquired parental responsibility under subsection (1) shall cease to have that responsibility only if the court so orders. (3) The court may make an order under subsection (2A) on the application— (a) of any person who has parental responsibility for the child; or (b) with the leave of the court, of the child himself, subject, in the case of parental responsibility acquired under subsection (1)(c), to section 12(4).” In essence this means that parental responsibility can be lost if good cause is given as to why it should be revoked. Although the law treats mothers differently to fathers the difference are only really evident when the couple are separating. In general terms the courts deal with such separations by the issuing of contact orders to the non-resident parent. Many fathers with contact orders in force have complained that enforcement of the contact orders is deficient within the UK9 (Advisory Board on Family Law Children Act Sub-Committee, 2001; HM Government, 2004; House of Commons Constitutional Affairs Committee, 2005). Part of the problem is exacerbated by the issuing of a residence order to one parent and a contact order to the other. It has been argued that a shared residence order10 should be granted with the presumption that both parents will have an equal division of the child’s time (Collier, 2005). Rhoades (2002) observed that there has been a rising trend in shared parenting in Canada and Australia. In the UK attempts were made to implement a similar shared parenting system through private laws to improve the efficiency of the courts (President of the Family Division, 2004). Legislation in the form of the Adoption and Children Bill 2005 is also designed to assist with the enforcement of contact orders. In a survey conducted by the Office of National Statistics (Blackwell and Dawe, 2003) it was discovered that only 10 percent of children had no contact with the non-resident parent and that most parents had made their own arrangements for contact without involving the courts. The research also demonstrated that court decisions on contact did not take into account the factors considered important by the parents such as the reasons for the break up and non payment of child support. Research has shown that in general terms children want contact with the non-resident parent on a regular basis. Pryor and Rodgers (2001) stated that in many cases children view the non-resident parent as being ‘important and significant in their lives’. Amato and Rezac (1994) demonstrated through their study that the majority of those used in the study had a positive reaction to regular contact with the non-resident father. Dunn (2004) noted that the relationship of children with non-resident fathers and the amount of contact with them was often influenced by the extent of cooperation, support, and communication between non-resident fathers and their former partners Trinder et al (2002) also noted that positive experiences of contact correlated with the lack of conflict between the parents of the child. Dunn (2004) also commented on how in many cases the resident parent can prevent the child having contact with the non-resident parent. In many cases it was noted that contact was limited or totally excluded where the relationship between the parents of the child was particularly hostile. Unfortunately for the non-resident father the courts do very little to intervene to enforce the contact orders. Resident parents have relied on Article 8 of the Human Rights Act 1998 in the past to prevent the court from enforcing contact orders on the grounds that such court interference is a breach of their right to a private and family life. This was demonstrated in the case of McMichael v UK11 where the court held that enforcing the contact order would be a breach of Article 8 and would deprive the mother of a right to a private life. The Adoption and Children Bill 2005 mentioned above came about as a result of the green paper entitled Parental Separation: Children’s Needs and Parents’ Responsibilities. One of the clauses inserted into the Bill was the proposal that enforcement orders should be included in the Act designed to impose sanctions on any parent that breaches the contact order. This was based on the notion that “a child’s welfare is best promoted by a continuing relationship with both parents, as long as it is safe to do so”. Despite attempts to enforce contact orders the courts still struggle with this issue. In the case of V v V (contact: implacable hostility) [2004]12 Justice Bracewell commented on the difficulties in enforcing contact orders stating that “Judges currently do not have the tools with which to make progress with the unreasonable mother or sometimes the unreasonable father, who can flout or frustrate orders with impunity unless, sent to prison.” He went on to say that under the present arrangement the options open to a judge when dealing with a resident parent who refuses to comply with the contact order is deal with them through contempt of court proceedings, transfer the residence order or stop trying to enforce the contact and discharge the contact order. Use of contempt of court proceedings is rarely used as the imposition of a fine or the imprisonment13 of the non compliant parent are incompatible with the welfare of the child as both are likely to impact on the child’s welfare. It was also noted that use of such extreme measures could serve to alienate the parents further leading to resentment of the non-resident parent by the resident parent14. Under the proposal for enforcement orders the non-resident parent might be able to persuade the courts to make an order that the child goes to live with the non-resident parent. It is envisaged that such orders would be an order of last resort where the resident parent continually flouted court orders to allow the non-resident parent contact with the child. Further problems have been experienced by fathers in maintaining contact with their children when the mother of the child decides to relocate at a substantial distance away from where the father is currently living. This was the case in Payne v Payne [2001]15 where the mother of the child wished to relocate with the children. In determining whether to allow such relocation the mother had to prove that the move was realistic and was not motivated by selfish reasons. The courts were concerned that the reason for the relocation was to deprive the father contact with the children. The courts will also consider the motives of the parent that is contesting the relocation16. Once the parent has proven that the relocation is not for selfish reasons then they must also show that the move is reasonable. When considering the proposal for relocation the courts will consider the availability of career opportunities for the resident parent as well as taking into account the education of the children and the availability of housing. A primary factor that will affect the judgment of the court is the distance from the current residence. The court will try to ensure that the non-resident parent is not likely to be deprived of contact with the children as a result of the relocation. Where the children are of a certain age and maturity the child’s wishes will be taken into account17. If the court is satisfied that the relocation is reasonable the parent will be entitled to relocate unless it can be demonstrated that such relocation would be detrimental to the welfare of the child. It is very rare for the court to prevent the relocation18, and is usually justified on the basis that the emotional and psychological impact on denying the parent the right to relocate would impact on the well being of the child. This point was stressed by Thorpe LJ stating that it was the task of the judge to assess the potential effect of such a refusal on the primary carer19. Since Payne there has been a tendency to allow permanent relocation in most cases. Nearly all such requests are made by the mothers rather than the father20. In cases where a residence order is in force the parent wishing to remove the child to a different country must acquire leave of the court to do this21. Problems with parentage have risen in particular in relation to invitro fertilisation. The Human Fertilisation and Embryology Act 1990 lays down the criteria for establishing the father of the child under s28(3). In the case of Re R (a child) [2005]22 the embryo had been implanted in the mother before the couple separated. After the baby was born the paternal father applied for parental responsibility and a contact order. The House of Lords followed the decision of the court of appeal in this case stating that under s28(s3) the father could only be regarded as the father if the couple were together at the time that the embryo had been implanted. The House of Lords held that by the time the implantation occurred the couple had separated and therefore the applicant could not be regarded as the legal father of the baby. If the parents were married at the time that the embryo was implanted in the mother than the courts are likely to declare the husband to be the natural father as separation of the couples has not been completed until the divorce has been finalised. From the above it can be concluded that mothers have greater rights than fathers. There appears to be a misconception that a child is best raised by a mother as opposed to a father as mothers are naturally viewed as nurturers and carers. This stereotypical view of women is in part to blame for the way in which the courts regard the mother as the person best placed to raise the children. If it were more commonplace for the father to adopt the role of carer of the child then there might be more cases for residence orders to be granted Bibliography Advisory Board on Family Law Children Act Sub-Committee, (2002) Making Contact Work: A Report to the Lord Chancellor on the Facilitation of Arrangements For Contact Between Children and their Non residential Parents and the Enforcement of Court Orders For Contact, Lord Chancellor’s Department Amato, P.R. and Rezac, S.J. (1994) ‘Contact With Non resident Parents, Interparental Conflict, and Children’s Behaviour’, Journal of Family Issues, 15(2), 191 Blackwell, A. and Dawe, F. (2003) Non-Resident Parent Contact, London: DCA. Booth, P, & Quanjel-Schreurs, L, The Legal Position of the Married and Unmarried Father under English and Dutch Law: Sharing Parenting or Just going Dutch? Liverpool Law Review 25: 135–158, 2004. Collier, R. (2005) ‘Fathers 4 Justice, Law and the New Politics of Fatherhood’, Child and Family Law Quarterly, 17, 511 Cretney & Masson, Principles of Family Law, 6th Ed, 1997, Sweet & Maxwell Dunn, J. (2004) ‘Annotation: Children’s relationships with their nonresident fathers’, Journal of Child Psychology and Psychiatry, 45(4) 659 Foley, T, International Child Relocation, Varying Approaches among Member States to the 1980 Hague Convention on Child Abduction, October 2006 H M Government, Parental Separation: Children’s Needs and Parents’ Responsibilities July 2004 Cm 6273 HM Government (2004) Parental Separation: Children’s Needs and Parents’ Responsibilities (Cm 6273). House of Commons Constitutional Affairs Committee (2005) ‘Family Justice: The Operation of the Family Courts’, HC (2004 – 05) 116-I. Inns of Court School Of Law, Family Law in Practice, 5th Ed, 2002, Oxford University Press Milka Oldham, Statutes on Family Law, 10th Ed, 2002, Blackstone’s President of the Family Division (2004) http://www.dca.gov.uk/family/plpguide.pdf (last visited 14 February 2006) Nigel Lowe, Mark Everall & Michael Nicholls. International Movement of Children. Family Law. Jordan Publishing Ltd 2004 Pryor, J. and Rodgers, B. (2001) Children in Changing Families: Life After Parental Separation, Oxford: Blackwell R. Spon-Smith, ‘Relocation Revisited’ [2004] Family Law 191 at 193. Rhoades, H. (2002) ‘The Rise and Rise of Shared Parenting Laws: A Critical Reflection’, Canadian Journal of Family Law, 19, 75 Trinder, L., Beek, M. and Connolly, J. (2002) Making Contact: How Parents And Children Negotiate And Experience Contact After Divorce, York, Joseph Rowntree Foundation. Table of Cases Birmingham City Council v P [2007] EWHC 3031 (Fam) J v C [1970] A.C. 668; [1969] 2 W.L.R. 540; [1969] 1 All E.R. 788; (1969) 113 S.J. 164 Kaur v Dhaliwal [2005] EWCA Civ 743; [2005] 2 F.C.R. 398 McMichael v UK 91995–20 EHRLR 205. Payne v Payne [2001]1 FLR 1052. Puxty v Moore [2005] EWCA Civ 1386; [2006] 1 F.C.R. 28 R. v Beese [2007] EWCA Crim 2649 R. v Turner [2008] EWCA Crim 272; (2008) 152(5) S.J.L.B. 28 Re B (Leave to Remove; Impact of ~Refusal) [2004] EWCA Civ 956, [2005] 2 FLR 239 Re B (Removal from Jurisdiction); ReS (Removal from Juridiction) [2003] EWCA Civ 1149, [2003] 2FLR 1043 Re B Family Division, 03 April 2007 Re C (A Child) (Contact: Conduct of Hearings) [2006] EWCA Civ 144; [2006] 2 F.L.R. 289; [2006] 1 F.C.R. 447; [2006] Fam. Law 525 Re C (A Child) [2006] EWCA Civ 235 Re G (Removal from Jurisdiction) [2005] EWCA Civ 170, [2005] 2 FLR 166 Re MJ (A Child) (Adoption Order or Special Guardianship Order) [2007] EWCA Civ 56; [2007] 1 F.L.R. 691; [2007] 1 F.C.R. 329; [2007] Fam. Law 389; (2007) 104(8) L.S.G. 38 Re M-K (A Child) (Relocation Outside the Jurisdiction) [2006] All ER (D) 223 Jun Re O (Children) (Contact: Permission to Appeal) [2006] EWCA Civ 1199; [2007] 1 F.L.R. 530; [2007] Fam. Law 19; Times, October 6, 2006 Re R (a child) [2005]UKHL 33, [2005] 4 All ER 433 Re W (A Child) (Removal from Jurisdiction)[2005] EWCA Civ 1614, [2006] 1 FCR 346 Re W (Children) [2007] EWCA Civ 786; [2007] Fam. Law 897; Times, August 2, 2007 V v V (contact: implacable hostility) [2004]2 FLR 851 Table of Statutes Adoption and Children Act 2002 Adoption and Children Bill 2005 Children Act 1989 Contempt of Court Act 1981 Human Fertilisation and Embryology Act 1990 Human Rights Act 1998 Read More