In an ideal world, decisions regarding child custody would not have to be made in court. Sadly the reality in 10% of divorce cases, is that courts are forced to take a central role in deciding the future of the affected children. The process of deciding and managing custody cases is often lengthy and drawn out. Time is even more precious when children are involved, and stalling in the decision making can add ammunition to the negative effects of the break up.
In the UK, there has been an ongoing campaign to give further legal rights to fathers in the UK. Recent proposals to amend the Childrens Act of 1989 were revealed by Ken Clarke yesterday, which would give divorced fathers increased rights to see their children. There is some debate as to whether this would really improve the situation for the affected children. In Australia the introduction of the right to shared access for both parents caused long delays in custody cases, which can worsen the situation for the children involved. The problems encountered in Australia illustrate that it may not be the law that needs changing but the way the cases are handled.
David Norgrove, who chaired the Family Justice Review which was commissioned by the government and published last year, criticised the proposals for reform. The report concluded that the law should not be changed, after thoroughly examining the issue of shared custody. The courts in England and Wales maintain that they assess each case individually and that the welfare of the child takes top priority. The minority of divorce cases that do get heard in the courts are a highly conflicted group, with numerous problems. In these complex cases usually both parents feel unheard. Coming to an agreement regarding custody and shared parenting will not be accelerated by giving parents more rights but by helping them fulfil their responsibilities. Finding a situation that is best for the children is the primary aim in such a situation and should be resolved by trying to give the children a voice. These cases are often very complex, courts already struggle to find the best speedy solution, more legislation could further impair the process.
In the majority of the cases that do go to court, family courts rule in favour of the mother. Because of the conflicted nature of these custody battle, this can result in a proportion of these children having little or no contact with their father. According to the Office for National Statistics, only 8% of single parents in Britain are men. The assumption of the courts is influenced by a traditional image of the nuclear family – where the mother cares for the children and the father works full time. These roles do not necessarily apply to the modern household and the courts bias towards the mother is somewhat out of date.
Growing up without the father can be difficult, but this is not always the fault of the courts or the limited custody rights. There are fathers who make the effort to see their children and there are those that don’t. However they should give the fathers that are good parents and want to have a key role in bringing up their children the opportunity to do so. Both parents have a right to raise their children and to be good parents, whether they are together or not. David Norgrove stated:
“This issue affects the lives of hundreds of thousands of children and it would be negligent not [to consider all options]. It is also right that we continue to encourage fathers to take responsibility as equal parents and to be fully involved with their children from the outset.”
The Children Act 1989 focuses on an individual child and their unique needs, preferences and circumstances. The rights of the child rather than the parents rights should be central in dealing with these cases. The primary issue is the culture of the courts that take an old fashioned stance in dealing with custody cases, rather than the lack of existing laws. The fair implementation of these laws along with the role of the courts and social services should ensure the child has regular access to both parents.