Law: Custody doesn't have to be a battle

Our Learned Friend

DESPITE THE inevitable references to the film Kramer vs Kramer and recent over-excitement in the press about the case, the Court of Appeal decision on 25 November awarding a father custody of a two-year-old boy heralds no change in the law. There will be no surge in residence orders being made in favour of fathers. The floodgates stand as before.

It is true that the judge in the case, Mr Justice Cazalet, said that "fathers are much better equipped to look after children nowadays than they were some 10 years ago". But in 1990, in a leading Court of Appeal case, Lord Donaldson said much the same thing: "It is much more common for fathers to look after young children than it used to be in bygone days. It must follow that more fathers are equipped to undertake these sorts of duties than was formerly the case. From that it must follow that courts could more readily conclude in an individual case that it was in the interests of a young child that it be with its father than they would have done previously."

Lord Donaldson's comments were not meant to - and they did not - give a green light to give fathers a better chance of winning custody applications. He was simply underlining the fact that, in the right circumstances, courts will award custody to fathers. And so the position for fathers is the same now as it was in that case in 1990: although there is no rule, principle or presumption that a young child should always live with its mother, there needs to be some strong consideration against the mother for her to lose custody. Each case will be decided on its individual facts.

In the more recent case, the court was concerned that if the boy went to live with his mother, there was a serious risk that she might take him to live in India and remain there, preventing him from seeing his father. In contrast, the father was found to be more likely to allow the child to remain in contact with his mother. The father was held to be reliable; the mother was found to be untrustworthy. There was nothing particularly ground-breaking in this decision. It has not "given a boost to father power" as one newspaper has alleged. Unfortunately, all this hype and coverage is potentially damaging. It might trigger some fathers to launch knee-jerk and ill-judged residence applications with no reasonable prospects of success.

Any struggle involving the family which goes through the courts is distressing and expensive, even more so if children are involved. Of course, in certain circumstances, going to court is unavoidable. Children might be at risk of serious physical harm, or a parent might be threatening to abduct them, and that is when it will be necessary to apply to court within hours for emergency orders to protect the children.

Fortunately, many separated parents are able to agree mutually acceptable custody arrangements and flexible contact between the children and the absent parent with minimum involvement from lawyers. Both parents are "child-focused" and the interests of the children really are treated as the priority. In these types of cases, formal residence and contact orders are discouraged by virtue of the "no order principle" implemented by the Children Act 1989. The principle works well - if there is no order, acrimony is defused and both parents are less likely to consider that one or other parent has the upper hand.

What the case has highlighted is that if you are a parent worried about a potential problem, you should concentrate at all times on damage limitation. And take advice before taking action. Be extremely careful about what you say to your partner. Be aware that badly thought-out applications or threats to go to court that are so easily uttered in the heat of the moment - but which are not necessarily meant or intended - can cause irreparable damage to the post-separation communications that will need to be maintained between parents. If necessary, hire specialist family lawyers who are prepared and experienced enough to be able to advise you to do what you may not want to do - but is in the best interests of the children.

Marcus Dearle is a partner in the family law department at the law firm Withers