The Truth Behind the Assumed Gender Bias in the UK Family Law System

85% of lone parent households in the UK are headed by single mothers.[1] This statistic is often used by those claiming that there is a gender bias in favour of mothers when the family courts are deciding child arrangement orders. This statistic is undeniably staggering, but to say this is caused from bias from the family courts against fathers is misleading. The truth is more complex and the context of this statistic is essential for a clear understanding. This blog explores the historical and legislative context behind this statistic, addresses misconceptions about the family court system and highlights the role societal norms play in shaping the outcomes of child arrangement cases.

Legislative Development

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The idea that mothers are naturally suited to raise children is ingrained in societal norms but this belief is not longstanding. Prior to 1839, fathers were granted custody of their children in the event of a divorce or separation, with mothers having no legal rights over their children.[2] However, significant legal changes started to take place in the 19th century, beginning with the Custody of Infants Act of 1839, which allowed mothers to petition for custody of children up to the age of seven.[3] This progressed further in the 20th century with the Guardianship of Infants Act 1925 aimed to create equality between fathers and mothers in custody battles.[4] However, it was not until the Guardianship Act of 1973 that truly ensured mothers and fathers had equal custody rights when a marriage broke down.[5] This was a crucial step toward gender equality in family law. The Children Act 1989 now prioritises the child's welfare and ensures that the decisions made in family court reflect the best interests of the child.[6]

Under the Children Act the welfare of the child is the paramount consideration for the court when making decisions about custody and child arrangements.[7] The law emphasises that courts must take into account seven factors when determining the best interest of the child. These factors include the child's physical, emotional and educational needs as well as any potential harm they may have suffered and the wishes and feelings of the child.[8] Crucially, the Act also makes fundamentally clear that, unless shown otherwise, the involvement of both parents is beneficial for the child’s welfare.[9] Although it is true that in general the law does not always transfer in to practice, it is still important to clarify the context of this conversation which is that the child’s best interest is of the upmost importance to the family courts in law.

The Statistics Behind the Statistic

In reality, 0.75% of all families with dependent children in England make a child arrangement order application to the family courts each year.[10] This statistic does include families that have not separated due to the difficulty finding the exact number of families who separate each individual year. Nevertheless, this statistic does demonstrate that a very small proportion of the population go through the formal family court system.  The cause of this is likely due to the fact that families who are separating are encouraged by the legal system to pursue other methods or come to a mutual agreement. For example, it is mandatory, except in specific circumstances, that parents requesting a child arrangement order attend a meeting about mediation before applying.[11] These mediations have proved successful with over 70% ending in a whole or partial agreement.[12] those involved in children only cases reported that court orders were rare, and an open letter or parenting plan was often more fitting.[13] This highlights that parents who are going through a separation rarely receive formal child arrangement orders through the courts. Therefore, it is not accurate to link the high number of families headed by sole mothers to bias in the family courts, since a significant portion of these families are a result from decisions made by the parents without the input of the formal courts.

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The Role of Primary Carer

Another important consideration in child custody cases is the division of labour within families. It is still more common for mothers to stay at home and care for the children while fathers work full-time. For example, in a 2022 survey, the majority believed that mothers should either stay at home or work part-time while raising young children and 0% believed that fathers should stay home while mothers worked full-time.[14] This unfortunate reality has huge implications for the small amount of child arrangement orders that do end up in court.

There are many considerations that must be taken into account when deciding how assets should be distributed when partners who lived together are separating. However, for this discussion a key point is that, when it is possible to do so, it is most likely that mothers who are not working due to childcare will remain in the family home. This is ultimately unsurprising, a father who works full time is more likely to be in a position financially to sustain renting or paying a mortgage for a new home. Additionally, the court’s emphasis on maintaining stability for the child means that remaining in the family home is usually in their best interest. In turn, the mother, as the most likely to remain in the family home, is more likely to be the child’s primary carer.

It is easy to understand why this seems to be biased towards women, but in reality the remaining gender stereotypes that are being upheld in society force this outcome. The family court system makes decisions based on the child's welfare, which favours the parent who has been more involved in caregiving. Importantly, this is not a result of bias within the legal system but rather a reflection of the gendered division of labour that still persists in society.

The Need for a Broader Understanding

The claim that mothers are favoured in child arrangement orders is extremely misleading. The legal framework in the UK, especially the Children Act 1989, focuses on the child's welfare and best interest. However, the larger context of gender norms and the societal expectation of caregiving hugely impacts these decisions more than any claimed bias in the family court system. Ultimately, family law aims to ensure that the child’s welfare is the top priority, and both mothers and fathers have equal rights in the eyes of the law. The perception of bias may be more reflective of societal standards and traditional gender roles rather than a flaw within the legal system itself.

[1] Office for National Statistics, ‘Families and households in the UK: 2023’, 8 May 2024 <https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/families/bulletins/familiesandhouseholds/2023> accessed 2 March 2025

[2] UK Parliament, ‘Custody Rights and Domestic Violence’

<https://www.parliament.uk/about/living-heritage/transformingsociety/private-lives/relationships/overview/custodyrights/#:~:text=The%20custody%20of%20children%20had,if%20the%20marriage%20broke%20down.> accessed 2 March 2025

[3] Custody of Infants Act 1839

[4] Guardianship of Infants Act 1925

[5] Guardianship Act of 1973

[6] Children Act 1989

[7] Children Act 1989 s1(1)

[8] Children Act 1989 s1(3)

[9] Children Act 1989 s1(2A)

[10] Cusworth, L. et al., ‘Uncovering private family law: Who’s coming to court in England?’ (London: Nuffield Family Justice Observatory, 2021) p.20  

<https://www.nuffieldfjo.org.uk/wp-content/uploads/2021/05/nfjo_whos_coming_to_court_England_full_report_FINAL-1-.pdf> accessed 2 March 2025

[11]Children and Families Act 2014 s10(1)

[12] Family Mediation Council, ‘Family Mediation Survey 2019 – Results’ <https://www.familymediationcouncil.org.uk/wp-content/uploads/2020/01/Family-Mediation-Survey-Autumn-2019-Results.pdf> p 3 Accessed 6 March 2025

[13] Family Mediation Council, ‘Family Mediation Survey 2019 – Results’ <https://www.familymediationcouncil.org.uk/wp-content/uploads/2020/01/Family-Mediation-Survey-Autumn-2019-Results.pdf> p 4 Accessed 6 March 2025

[14] Jules Allen and Imogen Stevenson, ‘Gender Roles’, (National Centre for Social Research, September 2023)

<https://natcen.ac.uk/sites/default/files/2023-09/BSA%2040%20Gender%20roles.pdf> accessed 2 March 2025