Child Custody and Mediation

According to Gail Savage, approximately 60 per cent of couples who appeared before the Court for Divorce and Matrimonial Causes had at least one child, making child custody and mediation a very real concern. Here, married mothers were discriminated against further: a wife divorced on the grounds of her adultery lost any legal claim to her children, whereas an adulterous husband and father did not. Yet by the late 19th century, family law – as it related to children – was comparatively progressive, with the Infant Custody Act 1873 placing the needs of the child above the desires (or demands) of either parent, providing of course, that the mother was not the ‘guilty’ party in a divorce. The 1873 Act also made mothers financially liable for their children for the first time.  

The decision-making process about where the children should live and how they should be supported is borne out in the J77 Divorce Court files, providing a unique insight into the dynamics of family life and the ways the State sought to intervene in what were ostensibly private affairs. Sir Andrew McFarlane, president of the Family Division in England and Wales has recently highlighted the potential damage that divorce courts can do to children, and the new approaches the family courts are piloting to prevent this harm occurring. The evidence generated by this project will offer important historical context to this important contemporary problem.