Law and Prejudice – Does Family Law Work for the Whole Family?

Abstract

The Children Act 1989 stipulates that the welfare of the child shall be the court’s paramount consideration when making decisions about who a child should 'live with' and ‘spend time with’ (collectively known as child arrangements) in England and Wales. In the context of post-separation parenting, the court is also facing increased pressure from Fathers’ Rights groups to prioritize the child’s contact with the father. But where does this leave mothers in the decision-making process, and how does this affect the lives of mothers beyond separation?

This paper focuses on separated mothers in England and Wales and examines whether, and to what extent, the life goals of separated mothers are impacted by orders made under Section 8 of the Children Act 1989. The author will review literature from England and Wales, Australia and the US - jurisdictions with similar approaches to post-separation parenting. Examining whether mothers can freely make decisions about their own lives when they are subjected to the obligations of a Section 8 Order, the paper argues that judicial outcomes may inadvertently have negative effects on the agency of mothers, that courts do not understand or take into consideration when making orders for their children.  

This contribution is significant because it highlights the assumptions about the ethic of care made by the courts, the human poverty for mothers that can be a result of court orders relating to children, and evidences the need for mother’s needs to be considered by the courts to a greater extent when they make orders under section 8 of the Children Act 1989.