So says a report by the Universities of Warwick and Reading, funded by the Nuffield Foundation. The study involved a review of almost 200 files from 2011 and concluded that:-
- Courts did not discriminate against fathers simply because of their gender
- Contact applications by fathers were “ overwhelmingly successful”
- Mothers were usually the primary carer but this reflected the fact that most women are more likely to assume this role after relationship breakdown
- There was no court bias against fathers
- 12% of applications before the court involved grandparents or other relative carers
- Transfers of sole residence orders were rare as the court sought to preserve the status quo, but when they were ordered, it was more likely that there would be a transfer from mother to father, rather than the other way round
- There were concerns raised that equal or near equal care was being used as a way to ensure adult fairness, rather than achieving the best outcome for the child
- Family courts are used as a last resort
- Litigation between parties does not inevitably lead to enhanced or entrenched conflict
- The recent legal aid cuts have made it unaffordable for most parents to litigate
- Legal aid is available for family mediation
- There were concerns that the legal aid cuts would lead to parents agreeing unsafe arrangements where risk was not managed appropriately, or would lead to a stalemate where lots of parents were unable to reach agreement
Certainly as a solicitor and family mediator, I experience a great deal of opposition to the idea of attending mediation by the primary care giver. In effect, this means that the absent parent has a stark choice: to give up on the whole idea of trying to maintain contact with the children, or to issue a court application. Many do not have the financial means to issue that application, or have the confidence to represent themselves in court.
I have also been a witness to complicated shared care arrangements where the payment of child maintenance and the emotional needs of both parents, as opposed to the children’s needs, have played a pivotal role in negotiations.