Castigating mothers: The judicial response to ‘wilful’ women in disputes over paternal contact in English law

Abstract

In this article I utilize Foucault ‘s theory of discourse to examine five English cases concerning paternal contact in order to discover the criteria utilized by the courts in reaching decisions as to whether or not fathers should have contact with their children where the issue is disputed between the parents. 1 argue that whilst judges explicitly frame their decisions according to the best interests of the child as laid down in Section 1(1) Children Act 1989, the concept is so vague as to give rise to the consideration of a number of influential factors which will affect the outcome to the detriment of the child and her/his mother. These factors are identified as: (i) the implacable hostility of the mother; (ii) the desirability of father/child contact; (iii) the prominence of fathers’ rights claims.

I also argue that in taking account of the above factors other important factors are ignored to the detriment of mothers and their children. Moreover, I demonstrate that mothers are subjected to vehement judicial disapproval for their resistance to paternal contact. It is suggested that judges deny the possibility that mothers may know what is best for their children on the basis of their experience in caring for their children on a day-to-day basis. I also argue that the judicial disapprobation of mothers who are resistant to contact serves to bolster the idea that ongoing paternal contact is a laudable aim worthy of legal support.

The practical and emotional impact of such judgments on women is potentially far reaching. Mothers are sometimes pathologized as deluding themselves to be acting in the best interests of their children. As a result, doubt is cast on the mother‘s ability to make rational decisions about their family's future. Furthermore, once the idea of the mother's hostility to contact is latched onto by judges it takes precedence over and sometimes negates the mother's reasons for wanting to frustrate contact between a father and his child even when there is strong evidence to suggest that paternal contact might not be in the child’s best interests.

Key Words:

• implacable hostility
• contact cases
• fathers' rights