Gender Neutral Family Court: Is Now the Time?

In 2023, Reem Aslem, UN expert on violence against women, reported to the Human Rights Council that deeply entrenched gender bias permeates family court systems worldwide (https://www.ohchr.org/en/stories/2023/06/gender-bias-custody-battles-places-women-and-children-risk). Can the same be said about the system in England and Wales? 

The need for a review into the impact of gender bias within the Family Court system in this jurisdiction is becoming increasingly apparent. If there is gender bias, the question then arises: what measures can be implemented to combat both intentional and unconscious bias that may affect a judge’s ability to make impartial decisions? In this article, James Legg, Counsel at IMD Solicitors LLP, and Antonia Kirby, Solicitor at Moore & Tibbits, explore the potential for a gender-neutral Family Court and the practicalities and challenges involved in such a transformation.

The use of terms like 'She,' 'He,' 'Female,' and 'Male' in this article does not reflect a belief in binary gender roles as 'right.' Readers who do not identify with these terms are encouraged to substitute them with 'they' or other preferred language. We apologize in advance for any inadvertent instances of heteronormativity or gender imbalance in this discussion.

The 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 to the Court.

Challenging gender bias and norms is a critical issue at the forefront of societal change, one that the legal infrastructure must address regularly. The Supreme Court's 2021 decision to reject a campaign for gender-neutral passports and ongoing debates about appropriately addressing court correspondence highlight the growing awareness and importance of this issue. Given the current President of the Family Division's intention to make the Family Court more accessible to the public, it is timely to consider the implications of a gender-neutral justice system.

Empirical Evidence and Practical Arguments

The first step in this exploration would be to determine whether empirical evidence exists regarding the impact of gender bias on the Family Court. The authors were not aware of any such data being in existence and it may something that the powers be need to look into. 

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 neutralization 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. Parties no longer being referred to as “husband” or “wife” may slowly happening but in our experience it is often the case that these labels are still regularly used. 

Parenting and Child Arrangements

In Children Act Proceedings client’s often express frustrations about perceived gender bias. Although the legislation makes no reference 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 parents’ genders as a factor. Therefore, using gender-neutral terms like "Parent A" and "Parent B" until the final hearing could help to promote unbiased, welfare-based decisions.

However, sensitivity must be maintained to avoid minimizing 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 the 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 and Challenges

Implementing a gender-neutral Family Court is theoretically straightforward but 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 must 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 out do Sci-Fi 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 true equality and justice. The first step appears to be trying to gather the empirical data in the first instance. 

If you need help or advice for any aspects of Family Law, contact our specialist team on 01926 354704 or email: AntoniaK@moore-tibbits.co.uk. 

Article by: Antonia Kirby | Senior Solicitor