March 9th, 2018
This is the second of two posts questioning the fairness with which each sex is treated in family proceedings. In the previous post, the inequality in the historic treatment of women, where adultery was provided as the fact causing the breakdown of the marriage, was considered. In this post, it will be contemplated whether men and women are treated equally in proceedings concerning children.
In today’s times, it could be argued that there are very few discriminatory features in Family Law. Munby LJ recently stated that ‘men and women come before the family courts... on an exactly equal footing. The voice of the father carries no more weight because he is the father, nor does the mother’s because she is the mother.’ 
There remain, however, some features which give commentators pause for thought on the question of whether men and women are truly equals in Family Law. These features include the notions of parenthood and parental responsibility, which are concepts which the law uses to define, firstly, who is a parent, and secondly, who is responsible for the care of the child. The latter usually goes hand-in-hand with the former, so for the purposes of the following text it is pertinent to presume that all legal parents also have parental responsibility.
With mothers, parentage is proven demonstrably by parturition, i.e. the woman who carried the child is the legal mother and the law no longer defines a mother as the woman who provided the egg. In this way, it is easy to find out who is, in law, the mother of a child and this is rarely a matter for heavy debate. For fathers, however, the issue is not so straightforward. A father is defined as the man who provided the sperm (except if he were a donor through a licensed clinic); which is not always as immediately obvious upon the birth of the child. Instead, the law relies on presumptions which is an imperfect system. If the mother is married, the law will presume that the husband is the father. Similarly, it will presume that any man named on the birth certificate is the father or any man who has obtained a signed parental responsibility agreement for the child. The latter are rare, and the pattern of some mothers failing to name a father on the birth certificate can mean that children lack a legal father.
The repercussions of this inequality can sometimes be frustrating, upsetting or inconvenient for unmarried fathers. Without parental responsibility, they may be unable to take the child out of the country without the express permission of the mother, or may similarly be unable to consent to hospital procedures. Many fathers may be unaware that they do not have parental responsibility for their child. Some commentators would go so far as to argue that the laws of paternity favour mothers over fathers - certainly, some judges appear to support this when they can be quoted saying such things as ‘mothers are special’. Although the unfairness here is glaring, the European Court of Human Rights ruled that it is not discriminatory against unmarried fathers due to the various levels of commitment which these different fathers may offer their children, from ‘ignorance and indifference at one end of the spectrum to a close stable relationship’.
All in all, there have been gross inequalities between the respective treatment of men and women in Family Law. In an ideal world, mothers and fathers and husbands and wives would automatically be accorded the same rights and there would be no question about this. Unfortunately, global history of women being viewed as the ‘property’ of their husbands and as the main child-carers still has echoes in today’s law.
At Hawkins Family Law, we believe that men and women should always be offered the same access and opportunities in Law. We can offer you advice whether you are going through a divorce, separation or experiencing difficulty in coming to an agreement regarding your children. Just give one of our staff a call on 01908 262 680 or email email@example.com.
Having recently graduated with her first class honours degree in law from the University of Bedfordshire, Holly is keen to explore her interest in Family Law. She has previously volunteered with public legal advice services and hopes to eventually qualify as a family Solicitor. Holly joined Hawkins Family Law in August 2017.
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