Family courts are required to make formal orders only if they think these may be of benefit or appear necessary. In those cases where separating parents contest child arrangements, but who subsequently satisfy the court that no order is necessary, they remain thus free to work out the best arrangements for care of their child(ren). In other cases, the court may decide that an order of some form may be necessary to clarify the situation about care of the child(ren), either by a residence order on one parent and a contact order on the other, or a by shared residence order.
The latter has had fluctuating support from the judiciary since 1989, and it is still difficult for a father to obtain, especially when children are very young.
Courts can also make orders designed to protect one or both parties to an acrimonious or violent family conflict, including a non-molestation order, and an occupation order, in which one party is ousted from the matrimonial home.
What happens in practice
There is strong anecdotal evidence that there is a general, if not institutionalised, bias against fathers in many family courts. Not only is this inequitable to fathers, but it also does not go unnoticed by their older children, who see their fathers being treated as second-class citizens.
The 1989 Act prescribes that the “welfare of the child is of paramount importance”. This mantra is interpreted by family courts in sometimes unusual ways, a frequent practice being to identify the welfare of the child wholly with that of the mother. Thus, any arrangements to give the father more involvement or contact with his children, which would or are likely to upset her, would be denied by the court, despite the rights of the child to a continuing relationship with both parents.
By default, residence of the child(ren) is thus almost always associated with the mother, no matter how good or caring a father is. Many fathers accept this, and agree to being a ‘contact’ or non-resident parent. The success rate for fathers being granted sole residence in contested cases is less than 5%, and then usually only because the mother prefers this.
Where the outcome is dependent on the family courts, therefore, most resident parents are mothers and most non-resident parents are fathers.
The problems for many fathers who accept being a non-resident parent come later, when agreed contact with their children becomes increasingly obstructed by the mother or even terminated for no good reason other than that she knows she ‘can get away with it’. Court contact orders in most cases do nothing to rectify this deliberate obstruction by the mother, family courts being reluctant to enforce them. Some fathers are known to have made literally dozens of applications for court ordered contact, at huge expense, but still without success. It appears that many mothers are allowed to be above the law.