If you’re going to complain about the family justice system, get your facts right

family law

It’s a seemingly innocuous sub-section of the Children Act, and one that you could easily overlook. I am referring to section 2(4) which states:

“The rule of law that a father is the natural guardian of his legitimate child is abolished.”

I accept that to many people the meaning of this may not be clear. However, just because you don’t know the meaning of something doesn’t entitle you to give it a meaning of your own.

It seems that some people believe that section 2(4) removes certain rights from parents, and of course from fathers in particular. However, section 2(4) is not part of some conspiracy against parents, or fathers.

I came across this misunderstanding on Twitter the other day, but a quick search of Google will show that this is not the first time that it has been raised.

To find the meaning behind the sub-section we have to undertake a short history lesson, beginning with the concept of ‘guardianship’. ‘Guardianship’ was actually a term still in use when I began practising in the early 1980s. In fact, the primary piece of legislation dealing with arrangements for children prior to the Children Act 1989 was called the Guardianship of Minors Act 1971. However, our history lesson begins long before 1971.

Guardianship actually had its origins in the feudal system, with early guardians being largely concerned with the property of a child heir. However, as described in a 1985 Law Commission Working Paper, the purpose of guardianship was to change:

“The institution of guardianship was originally of concern only to those who had property. It began as a lucrative incident of feudal tenure and developed as a means of safe-guarding a family’s property and securing its transmission from one generation to another. Subsequently it became the instrument for maintaining the authority of the father over the upbringing of his children.”

As most people will be aware, until modern times our family law favoured husbands and fathers (for more on this, see this post), and guardianship was part of that thankfully bygone system. Hence the law recognised the father as the children’s “natural” guardian (the word “natural” seems to have been used simply because it was the term used for an earlier form of guardianship relating to the heir apparent). The effect of natural guardianship was that the father alone had control over the person, education, religion and marriage of his children, until they reached the ‘age of discretion’ and in some respects up to the age of twenty one. While the father was alive the mother had no claims as natural guardian, and was originally in no better position than a stranger.

However, during the nineteenth century the mother was given limited rights in relation to custody and access, and those rights were expanded in the twentieth century, culminating in the Guardianship Act 1973, which stated that the mother’s rights and authority were the same as the law allowed the father.

However, despite those changes the rule of (common) law that the father was the sole natural guardian of his legitimate children was never abolished. Accordingly, when in 1988 the Law Commission carried out a review of child law, guardianship and custody, it recommended that the rule finally be abolished. That recommendation, along with most of the others made by the Commission, was included in the Children Act.

So it can be seen that section 2(4) had nothing to do with removing rights from fathers. It was simply giving effect to a change that had long-since taken place in practice. I suppose it could in a sense be taken to be part of a process of removing rights from parents, but the whole concept of ‘rights’ was being replaced anyway by the concept of ‘responsibilities’. Hence the introduction by the Children Act of ‘parental responsibility’, an idea that now underlines our entire system of child law.

Accordingly, if you are a fathers’ rights activist eagerly seeking evidence of the fact that the system is biased against you, section 2(4) of the Children Act is not the place to look.

Photo by R. Halfpaap via Flickr under a Creative Commons licence.

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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1 comment

Brian - April 1, 2017 at 12:55pm

Parental responsibility (CA 1989 S 2 & S 3) – a futile academic exercise in law which provides no recourse to empower a parent in practice whom is not the primary carer – and recourse in law via the courts, I’ll remind readers is the option of last resort – not the first! Depriving parents whom are not primary carers of any meaningful input into a dependent child’s upbringing by an obdurate and implacably hostile primary carer in a judicial institution obsessed with trying to be a forum and beacon for “collaborative” law when, by historic design (for good reason), is adversarial in origin and has developed sufficient liberal apathy to a point that family courts do not have the stomach to enforce any orders for which it seals under CAP! Removing guardianship may not be the reason “for the fact the system is biased”, removing it did little to help when the tools placed in it’s stead are inadequate or the artisan empowered with those tools lack the will to use them. King Solomon when dealing with a custody dispute expediently used the correct approach and method to determine with whom the “welfare of the child” could be best entrusted, although I dare say King Solomon had deliberately made an erroneous judgment before immediately setting it aside with an appeal decision based on the reaction of the real mother. Guardianship, albeit obsolescent before CA 1989, possibly could have become the tool of last resort without having to change living arrangements for the parent whom is not the primary carer to resolve disputes without enforcement. When CA 1989 was written, it was not envisaged that the now amended terms “residence” and “contact” would cause such conflict by the lay person’s erroneous perception of what those terms, particularly ‘residence’ inferred. Little has changed since the terms were amended where recalcitrant parents enters the courtroom with their ‘god given’ unilateral and unequal rights.

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