When a relationship comes to an end, decisions around the arrangements for the care of children of the family require to be made. It can be a difficult and emotive time for the entire family and may lead to significant acrimony meaning that decisions sometimes require to be made by a court.
The perception of gender bias in Scottish courts
The statutory provisions in the Children (Scotland) Act 1995 ("the 1995 Act") govern how the courts approach the issue of care arrangements for children in Scotland. The architecture of families has changed considerably over the decades since the Act came into force, as have societal views. Although the approach of the Scottish courts has evolved since the days of "mother knows best", the mistaken perception that gender bias informs decision making in family courts surrounding child contact arrangements may still prevail in some quarters.
The belief that mothers have more status in child contact and residence arrangements stems from traditional views of gender stereotypes; that mothers are the main care providers and are more adept at providing physical affection and comfort, whilst fathers are the material providers. Reflecting the social norms of the day, maternal bias was apparent in judicial decisions in the 1970s and 80s. In one case it was observed that it is "more in accordance with nature" that a child should reside with its mother and "a mother is better qualified than a father to bring up two young girls." Prior to the 1995 Act, the regime of childcare was quite different and when the courts awarded 'custody' of the child to one parent, they effectively removed the custodial rights of the other.
The 1995 Act – shifting the focus to parental responsibilities and rights
When the 1995 Act came into force this concept of custody was abolished and replaced by a regime of parental responsibilities and rights with the welfare of the child being the paramount consideration in any dispute. Under the 1995 Act a parent can seek a residence order regulating the arrangements as to with whom the child under the age of 16 should live. However, this does not diminish the other parent's parental responsibilities and rights, unlike a custody order. Sections 1 and 2 of the 1995 Act confer parental responsibilities and rights upon mothers and qualifying fathers. The latter are those married to the child's mother, those named on the child's birth certificate (for children born after 4 May 2006, which now includes all children under the age of 16), or those who have acquired such responsibilities and rights by agreement with the child's mother or order of the court. Parental responsibilities include the responsibility to safeguard and promote their child’s health, development and welfare, and to provide guidance and direction.
When separating parents are unable to reach an agreement in terms of contact and/or residence arrangements, then court action can be raised to seek orders to regulate the arrangements. The factors which Scottish courts consider in terms of the child's welfare are fact specific and decisions informed by outdated notions and of gender bias and maternal preferences are rare. The sole focus of the court, in line with the statutory provisions, is an examination of what is in the child's best interests. The court is also constrained not to make any order unless it considers that it would be better for the child that the order be made than none should be made at all.
Recent case law supporting co-parenting
It is now widely accepted that a child should have the benefit of the support and guidance of both parents. An examination of reported cases demonstrates an increasing willingness on the part of courts in Scotland to recognise the importance of paternal involvement in a child's upbringing, as well as a willingness to endorse shared care plans, even for young children. In AY v MM [2012] 8 WLUK 64, the father of a three-year-old child was granted a residence order in the light of all the circumstances including the child's mother's previous abusive behaviour towards the child. In addition, the child's mother was deprived of certain parental responsibilities and rights. In S v J [2012] CSOH the unmarried father of a one-year-old boy, who was not named on the birth certificate, was awarded parental rights and responsibilities as well as a contact order, as it was held to be in the best interests of the child. In DH v GH 2015 SCEDIN 43, a sheriff granted a residence order in favour of both parents. The court in this case endorsed the status quo of shared care, and made clear that it could not be persuaded that this should change. Finally, in GL v JL 2017 Fam LR 54, Lady Wise's decision to decline a specific issue order to relocate a two-year-old child away from Scotland, had the indirect effect of endorsing shared care between the child's mother and father.
If an order regulating the care arrangements for a child is made by a court, it must be emphasised that orders are not made "in favour of" one parent or the other. For example, most parents will already possess the right to have a child residing with them and therefore a contact order does not enhance one party's rights and responsibilities in relation to that child but rather regulates the arrangements for the benefit of the child.
It is reassuring that gender bias is now largely consigned to history and that where childcare has been shared between a mother and father during the marriage, our courts may (if the child's welfare so determines) conclude that it is in the child's best interests for this to continue following separation. But for these arrangements to work well in the interests of children, parties will require to work together as best they can to ensure that the child is not exposed to any ongoing animosity between them.
Children require a safe and secure home environment and a stable relationship with their parents. Childcare arrangements must be based on the requirements and experiences of the child. It is clear from the legislative provisions and recent case law that there are no presumptions including gender-based presumptions which should determine what is best for any child. The primary focus of the court is the welfare and best interests of the child.
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