Marilyn Stowe Blog

Fathers’ rights and family law in 2010: could every day be Father’s Day?

On Saturday afternoon I found myself in the menswear department of Marks & Spencer having a joke with the sales assistant. I asked her to put the till receipt in the bag because the goods I had bought that she was carefully wrapping would be coming back on Monday morning.

“I don’t know why I’m buying them at all”, I told her. “It’s Father’s Day tomorrow and whatever I buy I know for sure my dad won’t like it. So it will all be coming back, there’s not the slightest doubt about it.”

I left after she said she would be sure to keep an eye out for him when the store opened on Monday morning.

I had spent about thirty minutes choosing a sweater for him – after I had first decided that Marks & Spencer would be the best bet for a Father’s Day gift for my fussy dad.  If I went anywhere else, chances were he’d criticise my choice of store by saying it was too modern. I finally selected a bright blue cashmere V-neck. After wondering whether or not it was too bright, I decided to take the risk and on impulse also bought a pale blue check shirt to go underneath. They looked really nice together and I thought even my picky dad would like them.

I also bought him a card. It read: “In children’s eyes dads start off ten feet tall”.  And inside: “And in my eyes you’ve stayed that way”.

It was a simple card but I liked the words and bought it. Then driving home and reflecting on those words, I started to think about dads who would not be seeing their children on Father’s Day, particularly in the context of a second recent judgment by Mr Justice Mostyn.

What price the parent-child relationship?

In the case (AR (A Child: Relocation) [2010] EWHC 1346) Mr Justice Mostyn had to make a decision about whether or not a mother could remove her children from the jurisdiction of the Court, so that they could go and live in France.

As he acknowledged, this type of judgment is one of the most difficult that judges ever have to make. This is because it condemns the remaining parent, usually the father, to losing the relationship they had with their children for most of their childhood, if not most of their lives. Once a child makes a new life in a new country, retaining emotional and practical ties with a father in a different continent becomes nigh on impossible. That is unless the family is very wealthy and can afford to make regular transnational arrangements that really work, including regular travel, domestic and social arrangements, education and so on. Such arrangements can make it possible for the children to retain two (or in some very wealthy cases, even more) genuine homes in different countries.

In most cases however, departure from the jurisdiction prompts a real-life tragedy, with the father and his children severing their links with one another. What price can be put upon a child’s relationship with his or her parent? Isn’t preserving that relationship, at all costs, far more important than anything else?

Mr Justice Mostyn’s striking decision

Despite previous court decisions, which suggest that on the whole most mothers with reasonable arguments will be given leave to take their children abroad, Mr Justice Mostyn refused to let that happen. He considered the various facts of the case, accepted that both parents’ arguments were not unreasonable, but overall and on balance used his discretion to say “no”. He was not prepared to sever the children’s relationship with their father.

I am pleased he did. The previous decade saw a general improvement in women’s financial settlements . However it also saw a slow, painful and steady realisation by all those involved in child-centred disputes, that fathers should continue to play a constant and continuing role in the lives of their children post-divorce. Some fathers will argue that this swing has not yet gone far enough. Some mothers will say it has gone too far. But ironically I believe this has all come about because of the victory afforded to women who wish to go to work and do not want to be “stay at home” parents. In fighting for equality, and in many instances achieving it, women are helping men to obtain equality in childcare.

Return to “joint custody”?

Today most women of working age are expected to work by the courts. I recently had one case where a mother with four children under the age of 10 was asked by the judge when she intended to return to work to help the family budget. It seemed impractical to me – with only one child to care for, I found managing childcare and going to work very difficult – but that mother did indeed return to work, because she wanted to. She certainly expected her husband to provide more hands on care with the children, and he was happy to oblige. Post-divorce they rearranged their lives so both could give more parenting to their children, and it permitted both parties to earn an income.

Overall I believe there is now less of an assumption that the woman should automatically be the sole or only carer for the children. With courts also increasingly approving shared residence orders between the mother and father (even if this does not automatically mean “equal” sharing of the care of the children), there is far more recognition of the obvious value of a father in a child’s life. This is a value that would be lost if a child was sent to another country and deprived of their father forever.

It seems to me that we are slowly but surely creeping back to the “joint custody” type of order, which was abolished when the Children Act was introduced in 1991. It seems to me that mothers and fathers want legal recognition of their joint responsibilities to their children, and are rejecting the “no order” principle, in favour of a shared residence order. Increasingly both parents seem to be seeking formal recognition that their relationship with their children is not only paramount, but sacrosanct.

Fathers matter

Driving home, my thoughts turned to how my life would have been if my father hadn’t been there, playing a constant role. It’s easy to take having two parents for granted. Not all of us are so fortunate. There are many things that I wouldn’t have had without my dad. Many mistakes that I know I would have made without his advice. I know that no father is the same, and that many people will read my post and think I’m idealising fathers generally – I’m not. I do, however, believe that two parents, not one, should be expected to play a part in a child’s life. And from my professional experience, acting for as many fathers as I do, I believe most dads do willingly step up to the plate for their children.

So what did my dad say on Father’s Day? Well, he loved the bright blue cashmere sweater despite its vivid colour.  And he would have worn it with the pale blue checked shirt, except the shirt is going back on Monday morning, as unfortunately it doesn’t have a front pocket…

Image credit:daquellamanera

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