The Law Privileges Mothers and Unfairly Discriminates Against Fathers on Issue Relating to Children - Essay Example

The law privileges mothers and unfairly discriminates against fathers on every issue relating to children. Introduction Before plunging into the various arguments for and against the above statement, it is imperative to note that law deals in generalities and works by simplifying the insights of other disciplines into its own frame. It has been accepted that the present court system in England and Wales for dealing with contact disputes have serious limitations. It has been, over generations, considered that relationship with both parents is most desirable for children. Studies have proved that the most important factor involved in separation of parents is for them to prepare the children for the change that is due. CAFCASS has recognized that long court proceedings do more damage than good to the children involved and determined that what is needed of them is earlier therapeutic work with the parents to help them adjust to change (Adams, 2007). Arguments for the statement Studies point to the reality that some fathers lack the resources to relate to their children and often require the mothers to mediate on their behalf. They may lack the resources in terms of knowledge, information or emotional insight to be able to relate to their own children and this will be more stressed post separation (Adams, 2007). It is considered to be good parenting to cooperative and communicate effectively at the time of separation. The mother who extents her cooperation and support not only benefits the welfare of her child but also facilitates better relationship between the father and the child (Dunn, 2004: 662). This also lays the foundation for a successful shared residence arrangement (ibid: 325). In her study, 'Enduring Conflict in Parental Separation: Pathways of Impact on Child Development' (2003) 9 Journal of Family Studies 63), Jennifer McIntosh states that there are few worse starts in life that having a fearful anxious mother who is unable to relate to her child leading to a possible emotional detachment. It is imperative that the custodial parent, most often the mother, should be not just content but happy in her existence for the child to get a normal and happy life. With this perspective in mind, the courts most often rule in favor of the mother in cases of relocation. Poel v Poel, the court allowed for the mother to remove the child permanently to New Zealand after careful investigation of the couple's motives for such a movement. It was stated that such a decision was made not because there was any defect in the father but for the sake of the child's welfare and future (Brasse, 2005). An even stronger case example is found in Payne v Payne, where the court outweighed the positive relationship shared by the father with the child and ruled that the unhappy mother be given permit to leave the jurisdiction with the child. The father opposed the ruling as against his Article 8 rights and his rights to a fair trial under Article 6. Since then, the courts have taken care to ensure that, before relocation occurs, arrangements for contact with the non-residential parent are included within the court's order. In Payne the judge held to the view that the best interests of the children are associated with those of the mother as primary carer (Hayes, 2006). Even when there is reasonable and healthy involvement of the father in a child's life, courts find in their responsibility to weigh the risks involved in the mother pursuing a life in which she is unhappy with the risks involved in the severe reduction in contact with the father. The courts often rule in favor of the mother as in Re C (Leave to Remove from Jurisdiction) [2000] 2 FLR 457 (Brasse, 2005). In Payne v Payne, at 1065-1066, Thorpe LJ held that the court should base their decision after proper research and investigation into whether the mother's application is genuine and realistic and not motivated by a selfish desire to exclude future contact with the father (Hayes, 2006). Fatherhood is seen as a key provider for men of a sense of secure, stable masculine identity. In this context , Smart and Neale argue that for majority of the fathers, fathering is something they have to fit into a schedule dominated by paid employment; meaning that their core identity is generated elsewhere (Collier, 2005). Contrary to all arguments made by fathers' rights groups, Kaganas and Day Sclater note that parenting continues to be a gendered activity. Women hold the sole regard of being depicted as the one who sacrifices everything for their children just as they are blamed and held responsible in the event that they do not uphold this duty (Collier, 2005). While it is the fathers who are associated with the practical aspects of 'caring for' the children, it is still in the territory of women to carry the greater responsibility of 'caring about' the children. This gender difference facilitates reasoning to the fact that it is the male who display a greater propensity to evoke a rights discourse in the process of separation (Collier, 2005). As per section 4 of the Children Act 1989, an unmarried father does not acquire parental rights automatically but has to apply for a 'parental rights and duties order' pursuant to section 4 of the Family Law Reform Act1987. Before granting such rights, the court has to adhere to the norms of considering the degree of commitment the father has with his children, the level of attachment that exists between them and the reason for the application of the order by the father (Gilmore, 2003). In Re H (A Minor), for example, the court upheld the judge's refusal of parental responsibility on the grounds that there was lack of attachment between the father and the child. Mental health is another criterion; in M v M (Parental Responsibility), a father with an IQ of 54 and significant impairment of memory was denied parental responsibility on the ground that he is incapable of reason (Gilmore, 2003). Contrary to some studies by Dunn et al which proved that quality rather than quantity of contact was influential (Dunn et al, 2004: 562), other studies by Amato and Gilbreth argue that the effect on child outcomes of the amount of time a non-resident father spends with the child is mediated by the quality of father-child involvement (Amato and Gilbreth, 1999). The latter view is supported by Whiteside and Becker who are of the opinion that frequency of contact only has an indirect effect; the higher the frequency the higher will be the chances of quality relationships between the father and the child (Whiteside and Becker, 2000). Arguments against the statement The 'new welfarism' by Kaganas and Day Sclater advocates that "divorce and separation are seen as particularly damaging to both the individuals, for children and for society." In this process there has been a repositioning of fatherhood; "ideas of 'good fatherhood' have been reconstructed in the legal regulation of post-divorce family life." This in turn facilitates cooperative parenting and contact with the non-resident parent, who is most often the father, at the centre of the child's well-being. In short, there has emerged a powerful representation of good, benign fatherhood in law (Collier, 2005). Father's rights movements have been seen as particularly damaging to the concept of motherhood in general. In contrast to the image of a father as the respectable and financially efficient provider, a lone mother has been depicted as one in crisis with the absence of the masculine security that acts as cause and consequence of family breakdown. Studies have pointed out that it is desirable for a child to have a positive favorable image of the absent father. Therefore, the court recognizes that it is in the interests of the child's welfare that the parental responsibility order is granted and holds that 'where a father is committed to a child and has a good relationship with the child, such an order will not be refused without good reason' (Gilmore, 2003). In the case of parental responsibility, the relationship between the parents is relevant only to the extent that it affects the welfare of the child and therefore, a poor relationship between the parents is not sufficient to deny a father parental responsibility. This is reinstated by the courts comments regarding Re M (Contact: Family Assistance: McKenzie Friend) and Re G (Minors) where parental responsibility was granted to the father even though his relationship with the mother was not appropriate (Gilmore, 2003). Hon. Lord Justice Wall, in his article Enforcement of Contact Orders (2005), argues against those who assert existence of gender bias in family proceedings through examples of three cases where he ruled otherwise. In Re M and A v A, he removed the children from the mothers who were refusing permit with the fathers on the basis of distorted and false accusations and made a joint residence order with equal time to be spent with both parents in the case of the latter. In the third case, Re O, he permitted withdrawal of application for contact by the father whose behavior was the primary reason for the breakdown in contact arrangements. There is considerable evidence to suggest that the fathers' rights movements have invoked a new paradigm in family law which has paved way for further debates and have succeeded in creating pressure to reform the system (Collier, 2005). Once implemented, s 111 of the Adoption and Children Act 2002 will permit the unmarried father additionally to acquire parental responsibility where his name appears on the register of births. Conclusion In the words of Thorpe LJ in Payne v Payne, the child's principal dependency is on the primary carer, most often the mother. The health and well-being of a child depends upon emotional and psychological stability and security. And therefore of all the factors that are weighed in the balance, the greatest weight is attached to the happiness of the primary carer, upon whose happiness it is presumed that child's own happiness depends (Brasse, 2005). Hon. Lord Justice Wall, in his article Enforcement of Contact Orders (2005), argues strongly against gender bias in the Children Act 1989 and in judicial decisions based on it. The court's task, imposed by Parliament in s 1 of the Children Act 1989, is to treat the welfare of the child or children concerned as paramount and to safeguard and promote the welfare of every child to the best of its ability. From the above arguments made for the statement, it is evident that the primary priority is the welfare of the child. Supporting this, the court is most often induced to rule in favor of the mother. It is, therefore, not a matter of who the court favors more; rather it is the duty of the court to preside so as to ensure that the child receives a normal and healthy environment to grow up. Bibliography Herring, Jonathan. Family Law (Third edition). 2007. Adams, Steve. Parents' Rights v Children's Needs in Private Cases. Fam Law 37 (257). Jordan Publishing Ltd. March 1, 2007. District Judge Glenn Brasse. The Payne Threshold: Leaving the Jurisdiction. Fam Law 35 (780). Jordan Publishing Ltd. 2005. Collier, Richard. Fathers 4 Justice, law and the new politics of fatherhood. CFam 17 4 (511). Jordan Publishing Ltd. 2005. Gilmore, Stephen. Parental Responsibility And The Unmarried Father - A New Dimension To The Debate. CFam 15 1 (21). Jordan Publishing Ltd. 2003. Gilmore, Stephen. Contact/Shared Residence and Child Well-Being: Research Evidence and its Implications for Legal Decision-Making. IJLP&F 2006 20 (344). Oxford University Press 2006. Hayes, Mary. Relocation cases: is the Court of Appeal applying the correct principles CFam 18 3 (351). Jordan Publishing Ltd. 2006. Longrigg, William. Newsline Extra: The Leave to Remove Debate. Fam Law 35 (911). Jordan Publishing Ltd. November 1, 2005. Right Hon Lord Justice Wall. Enforcement of Contact Orders. Fam Law 25 (26). Jordan Publishing Ltd. January 1, 2005. Read More