Paternal rights gain further impetus

The favoured right of mothers to win possession of their children after divorce is no longer set in stone, writes Roger Pearson.

Fathers battling for the right to care for their children following a marriage break-up have received a major boost from a senior divorce judge.

For many years, the common judicial opinion was that children should remain with their mothers in the majority of cases. But this view has softened in recent years.

The ruling by High Court Family Division judge Mr Justice Cazalet, that the right place for a boy of two is with his father, has left no doubt that mothers cannot expect to get custody of their children as a matter of course. He believes fathers are becoming more competent as all-round parents, and "are much better equipped to look after children nowadays than they were some 10 years ago".

Ann Thomas, the father's solicitor and head of the family department at Cambridge firm Few & Kester, agrees. She stresses that fathers today play a far more active role in the bringing up of children than in the past.

Judge Cazalet was backed by Lord Justice Hirst, who said he considered that the father in this case was the right and most trustworthy parent for the child to be with. He branded the mother unreliable and untrustworthy, and be-lieved that the likelihood was that the father would lose contact with his son if she was awarded custody.

In her appeal, the mother had claimed that at Cambridge County Court last September Judge O'Brien had been wrong in his view that letting her have custody of the boy would result in the father being deprived of parental contact.

Her counsel, Richard Cross, argued that even if there had been any rational basis to those fears, the judge could have used the court's powers to secure compliance with any contact order. He said that any concerns the judge had about contact were out of all proportion to what might have been reasonable.

But Susan Maidment of One King's Bench Walk, counsel for the father, argued that the judge was entitled to exercise his discretion to make a residence order in favour of the father and that giving a father the right to bring up his child could not be said to be "plainly wrong".

Thomas says: "Since the 1988 case of Re A (1 FLR 354), there is no longer a presumption that a baby's interests are best served by being placed with the mother. It is a question of fact.

"Fathers are playing an active role during their partner's pregnancies and during the child's formative years. In many families, the role of caring for young children on a day-to-day basis is being reversed from mother to father."

She also stresses that the essence of this and many cases is to look at the whole relationship and not just to view a child in the context of one or other parent and their competing applications.

"A parent who makes contact impossible and generally disrupts contract arrangements is jeopardising their own case and, more importantly, disturbing the child's fundamental right to contact with both parents," she says.

"It is therefore important to instill in the minds of every parent contemplating initiating Children Act proceedings, that their attitude to contact from the start is, or could be, the determining factor in the outcome of the case."