In 2023, Reem Alsalem, UN expert on violence against women, reported to the Human Rights Council that deeply entrenched gender bias permeates family court systems worldwide. Can the same be said about the system in England and Wales?
The need for a review of the impact of gender bias within the Family Court system is becoming increasingly apparent. If gender bias exists, what measures can be implemented to combat both intentional and unconscious bias that may affect a judge’s ability to make impartial decisions?
Catalyst for change
The idea for this article emerged from our experience with a client who repeatedly insisted that the Family Court system in England and Wales exhibited overt gender bias. He believed that his treatment would have been different if he were female and that his ex-partner received undue leniency because she was female. This perception, although not unique, sparked the notion of a completely anonymous Family Court where parties’ genders were undisclosed.
Challenging gender bias and norms is a critical issue at the forefront of societal change, one that the legal infrastructure must regularly address. The Supreme Court’s 2021 decision to reject a campaign for gender-neutral passports and ongoing debates about appropriately addressing court correspondence highlight this issue’s growing importance. Given the president of the Family Division’s intention to make the Family Court more accessible to the public, it is time to consider the implications of a gender-neutral justice system.
Empirical evidence
The first step would be to determine whether empirical evidence exists regarding the impact of gender bias on the Family Court. We are unaware of any such data.
However, two primary areas for potential change emerge from our practice: the relevance of gender in financial remedy proceedings and its role in parenting and child arrangements.
Financial remedy proceedings
In financial remedy proceedings, gender anonymity or neutralisation is practical and arguably less problematic. The section 25 criteria focus on needs and resources, irrespective of gender. The determination of ‘who gets what’ from the marital assets is based on financial needs and contributions, not gender. Therefore, removing gender from consideration aligns with the legislative intent and ensures fair outcomes for all parties. The practice of no longer referring to parties as ‘husband’ or ‘wife’ is slowly starting to happen but in our experience it is often the case that these labels are still regularly used.
Parenting and child arrangements
In Children Act proceedings clients often express frustrations about perceived gender bias. Although the legislation does not refer to ‘mother’ or ‘father’, many parents feel discriminated against due to their gender. The welfare checklist in section 1(3) of the Children Act 1989, which guides decisions for children, does not include the parents’ gender as a factor. Therefore, using gender-neutral terms such as ‘parent A’ and ‘parent B’ until the final hearing could help to promote unbiased, welfare-based decisions.
However, sensitivity must be maintained to avoid minimising the arguably unique roles of ‘mother’, ‘father’ or ‘second mother/father’ in a child’s life. The ability to meet a child’s needs should be evaluated based on statutory factors, not gender roles, and on a case-by-case basis.
Domestic violence
Domestic violence cases present another area where gender neutrality might have significant benefits. Statistics show a disparity in the support received by male and female victims, with a stigma still surrounding men seeking help. A gender-neutral approach could empower more men to leave abusive relationships and seek the support they need.
Practical considerations
Implementing a gender-neutral Family Court is theoretically straightforward but it presents practical complications, especially in contested proceedings requiring final hearings. Removing gender references completely would necessitate changes in court forms and terminology, such as using ‘parent’, ‘grandparent’, or ‘extended family’ instead of gendered terms. Names might be reduced to initials and surnames to maintain anonymity.
However, complications would arise when parties appear in court or via video link. Ensuring anonymity while requiring parties to recite their names and show their faces is challenging. The use of screens or voice changers, while seemingly futuristic and something from a science fiction novel, could be considered to maintain anonymity.
Conclusion
The concept of a gender-neutral Family Court holds promise for reducing bias and ensuring fairer outcomes. While practical challenges exist, they are not insurmountable. A careful, considered approach to implementing gender neutrality in court proceedings could significantly benefit all parties involved. As societal attitudes continue to evolve, so too must our legal systems to reflect these changes and promote equality and justice. The first step appears to be to try and gather empirical data.
Antonia Kirby is a senior solicitor at Moore & Tibbits Solicitors. James Legg is counsel at IMD Solicitors
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