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Ordering mothers to hand over the care of  young children to fathers -  when does this happen and why?

Date:10 JUN 2015
Newspapers and social media are currently reporting the decision of a Birmingham court to order a mother to hand over her child to his father.

Ethan has lived with his mother Rebecca Minnock since the separation of his parents in February 2013, when he had just had his first birthday. The first court order was made in August 2013, that his father Roger Williams should have contact with Ethan. It is reported that he has had great difficulty in arranging contact with Ethan. By January 2014 the mother was making allegations against the father, and in February 2015 a different judge ruled that the allegations were untrue, aimed at disrupting contact. Ethan began to spent 4 nights a week with Mr Williams, and 3 with Ms Minnock.

It became clear that the next hearing was likely to result in an order for him to move more fully to his father's home. But before that could happen, Ms Minnock took Ethan and left home with him without revealing their plans.

In May 2015 (more than 2 years after the separation) the family court judge did reach the sensitive decision to order that Ethan's welfare is better served by living with Mr Williams than his mother, whom he ruled had made false allegations and obstructed contact. So he ordered Ethan to be found and handed over, and has cross-examined members of her family to try to locate him.

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It is rare for the family court to change the home of a child, particular a young child whose bonds with the parent with whom he lives are particularly important. Under section 8 of the Children Act 1989, such a change has to be made on the basis of the best interests of the child, with his welfare being paramount. There is a checklist for the court to follow, and such steps are not taken without good attempts to reach a compromise between the parents. Courts do not make such orders without welfare reports, often accompanied by expert witness from a child psychiatrist. One of the critical factors can be an assessment of how likely each parent is to support the child's relationship with the other parent, and the supportive parent is often able to demonstrate a better understanding of the child's needs.

There is a widely held perception that fathers receive a rough deal from the family courts. However recent research by the Nuffield Foundation 'How do county courts share the care of children between parents?' June 2015) concludes that families only use courts as a last resort, and generally the courts are fair in resolving the issues over children, with similar success rates for mothers and fathers applying for their children to live with them.

Figures released by Cafcass (the Child and Family Court and Advisory Service) for May 2015 show a 34% increase in referrals of private law cases to them, over the past year, with a total of 2,880 new cases. Cafcass is involved in all private law cases relating to children, not least to carry out safeguarding checks so that, at an early stage, judges are aware of any serious issues over children's health and wellbeing. Such an increase demonstrates the need for these resources, but can more be done by others too?

One of the real failures in the court system at present is the impact of the withdrawal of legal aid. Such court proceedings are expensive in terms of time and legal costs, and many parents are dealing without any proper help, which means taking matters into their own hands, and ignoring the courts.

It is unlikely that Ethan is going to remain hidden for long, and by her actions, Ms Minnock has made everyone more anxious and the necessary co-parenting of Ethan for the next 15 years (until he is an adult) more difficult. Proper support, from the courts, lawyers and from mental health professionals, is vital in such difficult situations, where real fears and pressures bring genuine anguish for parents and children.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.