No Gender Bias in Family Courts Says Irish Academic

GEO CASUALA key finding in a new report on gender bias in family courts declares there is no indication of gender bias in contested cases about where a child should live.

The May 2015 report authored by Dr Maebh Harding, from the University of Warwick and
Dr Annika Newnham of the University of Reading is based on a document analysis of a retrospective of 197 case files from five county courts in England and Wales over a six month period in 2011. Of the 197 cases, 23 were custody disputes between a parent and another relative, usually a grandparent.

In the “two parent cases”, fathers initiated 70% of the applications, whereas only 30% of the cases started with an application by a mother.

The most common type of court application was for an order to allow contact or access, making up 41% of their sample. Fathers brought 96% of all access applications. The majority of these applications were made in order to initiate or restart contact.

Applications which sought a sole residence order made up 43% of the sample. Similar numbers of applications for sole residence were made by fathers (32) and mothers (30) but their reasons for going to court differed.

Joint custody and joint residence applications amounted to only 7%.

Notably, in 2011 there was no presumption in the British law that the involvement of a non-resident parent would further a child’s welfare. In 2014 this presumption was added to the governing statute, the Children Act 1989.

In my view, the analysis of the data in the report suffers from the absence of real-life experience in the family law trenches. Let me give you some examples:

1. The authors discovered that in 51% of cases the father had been cut off from contact with the child and that in almost half of the parent cases (86 out of 174) mothers had made allegations of domestic violence against fathers. However, in only 45 of the 86 cases was their sufficient evidence of family violence.

The report reads “Court investigations into the truth of domestic violence allegations were rare and took place in only 21 of the 86 cases in which allegations of domestic violence were made.

Where fact-findings were held, few ended in a clear determination on the alleged facts. Instead, the question of domestic violence tended to be reconceptualised as being primarily about reducing the risk to the child and facilitating as much contact as was possible in the circumstances.”

In other words, even unproven domestic violence was used to minimize a father’s role in parenting.

THESE FACTS ACCORD WITH MY EXPERIENCE THAT MANY FATHERS ARE MARGINALIZED AFTER MARRIAGE BREAKDOWN AND ALLEGATIONS OF DOMESTIC VIOLENCE ARE USED AGAINST GOOD FATHERS TO THWART A CHILD/PARENT RELATIONSHIP.

2. The authors found that many of the cases took two years to resolve but expressed little concern about the delay saying:

“Time taken in the court process should not always be viewed as unnecessary delay. Cases need time to build trust between the parties and reach a workable child-centred conclusion ensuring contact was safe.”

THE REALITY IS THAT IF FATHERS BRING MOST OF THE APPLICATIONS FOR RESIDENCE OR ACCESS AND A RESOLUTION IS TWO YEARS AWAY, THE STATUS QUO CARRIES ON TO THE DETRIMENT OF THESE FATHERS AND THEIR CHILDREN.

3. The authors opine that going to court did not amplify or entrench the conflict between the parties finding that the vast majority of cases were resolved by consent orders. Only 25 of the 174 parent cases ended in a contested final hearing.

THE NAIVETY EXPRESSED IN THE AUTHOR’S FINDINGS ABOUT CONSENT ORDERS IS DISAPPOINTING. THE TRUTH IS THAT FATHERS ARE COMPELLED TO GO TO COURT TO OBTAIN RESIDENCE OR CONTACT ORDERS, AND MANY FATHERS SETTLE FOR WHAT THEY CAN GET AFTER YEARS OF FAILED NEGOTIATIONS WITH ADVICE FROM THEIR LAWYERS THAT FAMILY COURT JUDGES WORSHIP AT THE ALTER OF THE STATUS QUO.

Perhaps if academics conferred with family law lawyers when analyzing court data they would gain insight into the dynamics between feuding parents; understand the nuances and strategies employed by parents who seek to discount or eliminate the other parent; understand that children need both parents in their lives; and resist the attraction of the “primary parent” philosophy that is no longer relevant in today’s world.

The report is titled “HOW DO COUNTY COURTS SHARE THE CARE OF CHILDREN BETWEEN PARENTS?” and can be found at http://www.nuffieldfoundation.org.

Lawdiva aka Georgialee Lang


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4 thoughts on “No Gender Bias in Family Courts Says Irish Academic

  1. Law Diva, first off your title is not accurate. The academics are from two English universities. No where in the report does it say they are “Irish academics”; I can only presume that you jumped to that conclusion because of an Irish rooted frame for one if the academics.

    Secondly, this is an English study of the county courts; and unless you are a practitioner in those courts you don’t have direct experience. Those courts may well be unbiased; your experience is in B.C not England. Your experience is anecdotal and not even anecdotal in the same set.

    That said, the study is poorly done; a sample of 197 cases is hardly a large enough sample.

    The larger problem is that the study could not in any shape or form actually determine if there is bias in the system. Each case is individually decided, and if there is bias in the case it is hardly likely that the bias is evident in a judgment itself. Going on to look for bias by reading the judgments is not going to enlighten anyone on systemic bias.

    Poor studies like this don’t help, but only hinder addressing the obvious bias that is there in courts, particularly encountered by self reps who now constitute the majority of cases in B.C. Talking to lawyers such as yourself, bringing out anecdotal experiences buried behind the case is not enough, self reps must be part of that conversation.

    A better study is the self rep study from the University of Windsor.

    1. One professor is Irish, the other Swedish. You’re correct that the report does not reveal their places of birth, but why would it? I have amended the title. Hope that makes you happy, but I doubt it!

    2. Hi, Deep Thinker, how to find the “better study” from the University of Windsor?

      Also, there are BC court decisions statistical survey indicating bias. You can find them with a search for BC COURTS STATISTICAL SURVEY GENDER BIAS, which covers the BC Supreme Court and the BC Court of Appeal.

  2. The conclusions of the Dr Maebh Harding report are as you state lacking of real life experience which is entirely consistent with the Dr Harding’s purely academic background in UCD Dublin, Portsmouth and now Warwick Universities. Without real life exposure to courts she has produced a report based on a desktop study of the outcomes of less than 200 cases. It is hardly surprising that the outcome of such a study would lack any material depth or application to the reality of the cases. Frankly I am offended that the tax payer invested £100,000 in this report to derive a collusion that could of just as easily been arrived at from an afternoon looking over the data of case decisions in a spread sheet with the basis of success or failure of the case defined by access granted or denied, all be it 3 years after the application and for two hours visit every two weeks. The issue does not limit it self to the courts it is extends in to social services who’s preference is to deny access as no harm can come from a recommendation to deny access when there are unresolved allegations being made by the resident parent, as a recommendation to the contrary which results in an undesirable outcome may result in them being criticised, facts and supporting evidence are not required. There are also a number of charities such as gingerbread who offer ‘guidance’ on how to proceed when at court, this guidance seems to advocate the clear advantages and very few disadvantages of making allegations of domestic violence. Even when found to be untrue no action is even taken by the courts to address the false allegations and the resident parent can easily frustrate the application for access rights by 12-18 months by doing so to allow the court to conduct a fact finding hearing. This is I believe at the crux of the decision to stop tax payers support child access cases as these allegations are rarely found to be supported by the evidence and do little to protect the interest of the child. As you may detect these opinions are from my own experience which do not align with Dr Harding’s findings, rather they are entirely as you describe. The application of some common sense to the data would highlight the inconsistencies of more than 60% of all divorces resulting in denial of any access to the children to the non resident parent due to the unsuitability of that parent at the time of the separation. Which requires the intervention of the courts to determine if access is to the child’s best interest. By this definition the rate of domestic violence and or child abuse would mean over 25% of all married men are not fit to have access to their children based on the UK’s 42% divorce rate. This incidence domestic violence simply does not stand scrutiny, it should be recognised that denying access does cause harm to both the child and the non resident parent, this is the real abuse and it is happening at the hands of the court system.

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