What are fathers for?

Last month a man lost custody of his children, even though he had always been the househusband and primary carer. Robert Verkaik asks: does the law treat fathers unfairly?

Jonathan Green was bowled over when he found out that he was to become a first-time dad at the age of 40. Within days he had decided to give up his job in the world of international yachting. Because his wife held a highly paid post in the City of London, he could afford to retire early. They both agreed – Jonathan should keep house and look after the children while his wife continued bringing home the bacon.

Since they took that important decision six years ago, Jonathan believes he has always been a good father to his two children. "When we found out that my wife was pregnant I knew it was the most important thing in my life. I didn't think twice about giving up my work and becoming a house-husband." He adds: "I did all the things a father or a mother does: I took them to school, cooked their tea, helped organise birthday parties, and was just there for them. To me there wasn't a distinction between what a father does and what a mother does."

But last month Jonathan discovered that his views of modern parenthood did not match those of the courts. After his relationship with his wife broke down last year, they both claimed custody of their children. Whatever happened, Jonathan expected to continue to have a key role in the care of his children. But when Lord Justice Thorpe, sitting with Lord Justice Buxton in the Court of Appeal, upheld an earlier ruling that both children should be brought up by their mother, Jonathan's role in their life was reduced at a stroke to that of a "weekend father".

The decision prompted an immediate outcry from support groups for fathers, as well as from Sir Bob Geldof, who claimed that the courts discriminated against men. Lord Justice Thorpe based his decision on an opinion by the judge at first instance, who believed the mother was committed to giving up work to be with her children. That judge also preferred the mother's long-term plan for caring for the children, which involved moving them 300 miles from their home in London to be near her family.

Jonathan's barrister, Richard Todd, argued that if the roles had been reversed, with a father who proposed to abandon a lucrative career, that father would have no chance of winning a residence order. Lord Justice Thorpe addressed this argument in his judgment. "That submission," he said, "seems to me to ignore the realities, namely the very different role and functions of men and women and the reality that those who sacrifice the opportunity to provide full-time care for their children in favour of a highly competitive professional race do, not uncommonly, question the purpose of all that striving, and question whether they should not re-evaluate their life before the children have grown too old to benefit."

Fathers' groups argue that such justification could only be used to support a mother's claim. It has also left Jonathan feeling badly let down by the justice system. "The courts have started to use the words 'primary carer' and 'primary provider' rather than father and mother, which implies there is some kind of equality. But this seems to have been completely ignored by the courts in my case." He adds: "After my wife's maternity leave, when we had joint care, I was the primary carer for the whole of their lives. The courts pay lip service to the rights of fathers, but the reality is that the mother comes first."

Jonathan's views are supported by the experience of many other fathers who are battling to have their children live with them. Some fathers, frozen out by the justice system, have recently taken to protesting outside the homes of judges they accuse of taking their children away from them. Many of their experiences echo those of Jonathan Green. Others have given up trying to enforce contact orders that are being deliberately flouted by mothers in the belief that the courts are reluctant to take punitive action against them.

Ensuring that both mothers and fathers can continue to have full roles in their children's lives after divorce and separation is one of the biggest challenges facing the British family justice system. Ministers, lawyers and the judiciary have only now started to meet this challenge. Earlier this year the Lord Chancellor's family law advisory group published a report, "Making Contact Work", which suggested innovative ways to help families remain in contact after a divorce or separation. These included child contact parenting classes and more effective use of existing powers to punish parents who refuse to comply with court orders. Today 40 per cent of the children of separated parents lose touch with the non-resident parent within two years of separation.

Last week the Government helped to launch a six-month consultation exercise over referring families to child-contact centres, which are intended to provide a safe and child-orientated environment for divorced or separated fathers and mothers to be together with their children. Rosie Winterton, a minister in the Lord Chancellor's Department, said at Nottingham Trent University that the strategy of both the Government and the Child Contact Centre Working Group was "to help children and their families manage difficult transitions by providing safe, quality services". She said the Lord Chancellor's Department, in partnership with the working group, was keen to develop a long-term strategy to provide a national network of child-contact centres that can offer safe and neutral venues for children to maintain contact with their non-resident parents.

But all this is coming too late for Jonathan. "Since the divorce I have rented a house in the local area in order to be able to see as much of the children as I can, including every other weekend and half the holidays. It does not seem to be in the interests of the children to move them away from where they were born and lived. I have no alternative but to follow my family, 300 miles away, and be as close to them as I can. I would not want it to be any other way."

Jonathan is now preparing to take his case to the European Court of Human Rights, at which he will argue that he was denied the right to a fair trial. However, he accepts that this challenge will do little to help his own situation. "This process of appealing to Europe could take up to a year, and it may not help me or affect my wife, but we feel such an injustice has been done that we have to take this matter further."

The husband's name has been changed