How is the role of fathers changing within family law?

In an ever-changing society where tradition and the norm is increasingly thrown to the wind, the law and its application must change – whether by policy or by convention – to reflect this.

One area that has undergone immense change is that of parenthood. While inequalities persist, the dominant ideology has shifted away from one of patriarchy and towards one where women excel to their fullest potential, which goes far beyond just parenting.

The role of fathers has, therefore, been required to evolve and adapt. But how has this been reflected in the eyes of the law? Today’s Family Lawyer polled the thoughts of the sector – here’s what they said.

Alex Davies, Partner and Head of Family Law, Cripps

My observation is that over the last 25 years I have seen courts’ approach to fathers become increasingly pragmatic and has moved away from the view – one that perhaps held sway in the last century – that fathers’ involvement with children post-divorce should be limited to weekends only. Perhaps that is in response to greater awareness of the development of human rights legislation since 1997, particularly the importance placed on family life, and mirrors the shift in approach to financial provision in the same period that has sought to treat divorcing couples more equally.

Whatever the reason, I have definitely sensed a shift of judicial emphasis away from finding fault in either parent (unless it’s necessary to do so) and towards assessing the logistical basis of arrangements for children. Of course, the digital world has brought so much more scope for children to communicate with their parents and that (in most cases) has been more of a help than a hindrance – I will always remember the case of a father being alienated from his young son by the son’s mother who reconnected secretly after a few months because they played the same online game that had a chat facility.

Amanda McAlister, Managing Partner, McAlister Family Law

The role of Dad and father’s rights has moved on significantly over the last 25 years. At the start of my career, there was certainly a level of bias in the courts, and I still remember one Judge saying the child should always live with Mum, despite the law stating there is no presumption that a child should live with their mother.

25 years on, it is clear to see that times have moved on. For example, in 2003 we saw the introduction of parental leave and in 2015 shared parental rights, both of which have brought about a positive shift with fathers taking a more proactive role when it comes to their children. Dads in the public eye, such as David Beckham, have also helped the movement by making being a hands on Dad more fashionable and desirable for families. In turn, this new norm has helped to break down the bias in the courts and establish that children do best when they have relationships with both parents.

However, in my view, whilst the rights of fathers have moved positively in the right direction over the last 20 years, some parents still find the concept of sharing care of their children equally unpalatable and until such attitudes change, litigation through the courts will continue.

Sarah Whitelegge, Senior Associate, Family Law, Myerson

In cases which involve issues of parental responsibility, including applications made to the court for a child arrangements order, the presumption of parental involvement applies. This provides that in certain circumstances, the court can presume that parental involvement in a child’s life will further the child’s welfare.

The presumption will apply where:

• A parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm.
• There is no evidence suggesting that any involvement of that parent in the child’s life would put the child at risk of suffering harm.

Usually, in the absence of any welfare concerns, it is expected that a parent of the child will meet this criteria. The presumption can be displaced if there is some evidence that a parent’s involvement would put the child at risk of suffering harm.

Marie Kilgallen, Family Law Associate, Irwin Mitchell

Traditional gender roles in the UK have changed and, as a result, the importance of fathers in their children’s lives has become more widely recognised particularly in the legal arena.

Under the Children Act 1989, the welfare of the child is the courts’ paramount consideration. This has not changed since the inception of that legislation. There is also a presumption that it is in the best interest of the child to have a meaningful relationship with both parents (provided it is not shown that the child is at risk of suffering harm).

As such, the role of mother and father are placed, from the outset, on an equal footing.

Separation and divorce can be a significant life-changing event – not only for the parties, but also the children. It is often the conflict between warring parents that has the potential to cause emotional harm rather than the separation itself. It must also be remembered that it is the minority of cases that end up in court when parties separate and the vast majority of parents are able to agree the ongoing roles they will play in their children’s lives and how their care will be shared. They are now ably assisted by the advent of co-parenting apps, shared calendars, and the increasing use of social media messaging and video calls which mean the impact of separation can be felt less than ever before.

There is a societal perspective that the status quo factor, whereby the Court have regard to the existing child arrangements, prioritises mothers. Where the mother has been the historic caregiver, for whatever reason, the Court will consider afresh the arrangements that are best for the children moving forward and will ensure change is monitored and introduced in way the ensures the children can adjust. Whilst sometimes frustrating, parents usually recognise that change needs to be at the pace of the child rather than the parent.

The biggest challenge to the role of fathers from a legal perspective are the chronic delays within the underfunded and under resourced Court system. The Court will consider a series of factors known as the welfare checklist when asked to make any decision in relation to a child and often involve other professionals – this can lead to weeks or months of delay in which a father may having no or limited time with their children and will have to rebuild their relationship if it has been impacted by the delay. It is fair to acknowledge that some parents use the delay within the system as a way to control a child’s relationship with the other parent.

For that reason we, as family lawyers, advocate a variety of alternative methods of dispute resolution such as family therapy, mediation (sometimes involving the child), collaborative law, arbitration or other forms of non-court negotiation. If parents and professionals share the aim that the needs of the child come first, then it is open to the parents to decide the arrangements for care of their children and navigate a co-parenting relationship.

The recent drive toward transparency within the Court system should help to reduce the myth that family law favours mothers over fathers and will highlight the difficult balance in family law decision making.

Ruby Holland, Trainee Solicitor, Ashfords LLP

The role of fathers has progressively changed in recent years, both within the family home and by the court when considering child arrangements. There has been a move away from the more traditional role of ‘breadwinner’, to parents sharing the responsibilities of day-to-day family life.

The diversification of gender roles, where women are now afforded more equal opportunities within the work place and with the increase in women attending university and in some cases becoming the main breadwinner, has forged a new age of stay at home dads. This is supported by statute, with fathers having paternity leave and more flexible working opportunities. This in turn has allowed fathers to take on more childcaring roles.

There has been a rise in applications to the court by fathers for child arrangement orders which provide for equal shared care between parents. This clearly shows that fathers are wanting to be more actively involved in their children’s lives post separation.

The family court is heavily supportive of both parents playing an active role in their children’s lives post separation and will find creative solutions to childcare arrangements to facilitate this. It is recognised that it is in a child’s best interests to know both of their parents, providing it is safe to do so. The court will assess both parents’ ability to care for their children, regardless of gender.

With modern parents both taking an active role in caring for the children, the court system is recognising and supporting this.

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