The exclusion of motherhood from the debate

A new ‘truth’ appears to have been established in which all debates about children and residence after divorce or separation are premised on the assumption that courts favour mothers over fathers.[446] This ‘injustice’ is treated as self-evident[447] because, statistically, after divorce or separation, children are still far more likely to live with their mothers than with their fathers.[448] In the face of such an appar­ently incontrovertible ‘truth’, it is hard to compose a counter-argument which does not appear to be denying fathers their ‘rights’ or to be asserting that fathers cannot or should not care for their children. Mothers have thus become defined as an obstacle to justice for fathers and, to a lesser extent, as obstacles to their children’s welfare if they (appear to) fail to recognise the importance of care provided by fathers.[449] Alternative arguments are defined as partial because of the highly polar­ised nature of the current debate. Moreover, they are seen as antithetical to fairness and ultimately as neglectful of the proper welfare of children. Themes which once spoke of the significance of the ‘primary carer’, for example,[450] or which construct the field of parenting and caring outside the framework of ‘equality’ have become virtually unspeakable, and certainly suspect within family law discourses. This is because the ‘care talk’ of mothers engaged in contact or residence disputes is treated either as unremarkable (it is mothers’ duty to care, so this does not consti­tute a special claim), or as simply insignificant when compared with the combined ‘rights talk’ plus ‘welfare talk’ plus ‘care talk’ of the fathers’ rights movement. This means that there is no way that motherhood can be legitimately positioned in the debate, notwithstanding the fact that mothers are still the primary carers of children. Moreover, because in the wider policy context ‘responsible caring’ has become a doctrine of good parenting, any behaviour which seems to deviate from this model is seen as requiring correction. It is mothers, therefore, who are seen to be in need of remedial intervention;[451] or, as Gillies has framed it, it is predominantly mothers who are now required to practise ethical self-governance.[452]