In brief: The history of the family court - and why it matters

Lara Feigel: 00:00 As the 19th century began, there were increasingly more people turning to the courts to arrange their intimate lives. I think society was becoming more legally orientated in general, so that problems in families became too complicated to be resolved by social norms or by community forums. And people turned to the courts to resolve their difficulties. But the courts then in turn, as things tend to do, became the problem. Kate Daly: 00:32 Welcome to the Divorce Podcast, where we explore relationships, divorce, separation, and parenting apart. This episode is part of our mini-series where we answer your questions, discuss current news and events, and share practical bite-sized tips. I'm your host, Kate Daly, a relationship counsellor, divorce specialist, and co-founder of Amicable, the online legal service for separating couples. This week I'm delighted to be joined by Lara Feigel, author and professor at King's College, for a whistletop history tour of family courts in England and Wales. Lara is the author of the new book Custody, The Secret History of Mothers, one of the Economists' best books of 2026. This is a history of child custody from 1800, told through the stories of several families. Book ends with a chapter on the courts in the present day. A quick heads up before we start. This episode touches on the death of a child, domestic abuse, and homophobia. So please take care while listening. Support organisations are linked in the show notes. Lara Feigel: 01:42 Welcome Lara. Hello, thank you for having me. It's great to be here. Kate Daly: 01:46 Well, it's lovely to see you. Thank you very much for joining us. This week's episode is all about the history of the family court in England and Wales. So, Lara, why don't you start by giving us a bit of a whistle stop tour of how the family court has developed and what some of the key changes that have happened are? Lara Feigel: 02:06 Yes, so custody cases in the 18th century were extremely rare. And then as the 19th century began, there were increasingly more people turning to the courts to arrange their intimate lives. I think society was becoming more legally orientated in general, so that problems in families became too complicated to be resolved by social norms or by community forums. And people turned to the courts to resolve their difficulties. But the courts then in turn, as things tend to do, became the problem. Law had to develop, and courts became complicated and developed their own biases and dynamics. So that's the kind of large history I'm tracing. And then the kind of really interesting changes happened in the early 19th century. At the beginning of the century, children were straightforwardly seen as the property of men. Men own their children in the same way that they owned any other possession from their houses. So you mean they were treated as chattels almost then? Yeah, absolutely. And that's partly just the legal system wasn't designed for anything more than that. The legal system was all about assigning property to one person or another. So children just had to sort of be part of that. And then there was a very gradual erosion of that principle. And my book is told through the history of six families, mainly six women who had sort of instrumental custody battles of one kind or another. And the first chapter is about a woman called Caroline Norton who discovered that her husband owned her children way too late in her marriage. She'd always been a very emancipated woman. She sort of assumed that because she was able to write books and take her earnings and host salons with the kind of great men of the day, that things had changed and that she was, in a way, the one in the marriage who was more powerful. She was the kind of confident of her prime minister. When her husband lost his job, it was she who arranged with the prime minister to get him a new one. And she was very much what we'd now call the primary carer with her children as well. She was the one, she breastfed them herself, although many sort of aristocratic 19th-century women didn't. She nursed them sort of diligently through every cold. In her letters, you get the kind of details that are so familiar to us now of sort of worrying about her sort of her son's lungs and trying to get him an extra soft scarf that he could look at wear to sleep. And then suddenly everything came crashing down around her when she had one too many arguments with her husband. He got fed up that she was in charge. He said, actually, kind of that's the end. I'm going to sue for adultery. I think you've been having an affair with the prime minister. And he so he did that. And when that failed, she was found to be innocent. He just said, Okay, right, I'm taking the children. And she hadn't known until then that he could do that. It was a kind of extraordinary thing that it was almost, it was like absolutely the norm for everyone, but also kind of oddly unknown thing because there were so few legal cases to test it, that these men owned their children. And she did everything she could. She got everyone sort of powerful to intervene, but there was nothing she could do. Her children were taken around the country. She, the husband wasn't even looking after them himself. They stayed with various relatives. She would sort of turn up and beg to see them and be turned away. And then in desperation, she realized that she couldn't fight for her individual children. She had to fight to change the law. And so she then turned to MP friends and very laboriously, very slowly, sort of aware that her children, every month without them, was a month that they would have changed, kind of beyond recognition. She brought about what would become the Custody of Infants Act in 1839. And that act was the first piece of feminist legislation we've ever had in England. And it also began the gradual change towards children having equal access to their parents. And it allowed for women to petition for access to their children under seven in the court of chancery. So a very sort of tiny first step, but nonetheless a really instrumental one because it kind of acknowledged as a legal principle the idea that children's welfare mattered and that children needed access to their mothers. Kate Daly: 06:19 Wow. I think it's just fascinating when you tell that story. What strikes me is how those human concerns and the human kind of element of that story just hasn't changed. All the things you're listing that she was concerned about are things that we're concerned about today, aren't they? But like you say, there was no recourse at that point. Absolutely for children to see both parents, that that kind of use of the children as a pawn in what was an adult argument, essentially. All of that feels very sadly familiar. Lara Feigel: 06:52 It does totally. And the sort of sense as well that people become that in a way, the one who's more powerful in the legal process becomes a worse version of themselves because they're empowered by that process. So I don't think when you first read about her husband, he doesn't seem like a sort of terrible person. But by the point at which he's hiding his children from her, it's like the whole process of custody has sort of turned him into that kind of gruesome monster. Kate Daly: 07:19 Exactly. This is what the legal system sucks out of people and does. It turns you into something that you are not. Lara Feigel: 07:33 Yeah. And very sadly, the story ends with a tragedy. She did manage to bring about this act, but it didn't have any immediate impact for her. And in the meantime, the children were continued to be passed around between relatives. And at one point they were left totally unsupervised horse riding in a sort of the massive grounds of someone's estate. And her youngest son, age seven, went out and got fell off his horse and ended up dying as a result of injuries that weren't tended to. Yeah. What a tragic story. I know, I know. And I research in custody over these hundreds of years, I do find way too many children dying as a result precisely of that sort of process you're describing, where some parents are so obsessed with the kind of fight between them that the children get completely forgotten about. And she's she said after after her boy's death, she said, if only some of that money that was spent on sort of fighting me could have been spent on just hiring a servant to look after him when he was left unattended. It was a sort of awfulness of that tiny amount of money not being spent. Kate Daly: 08:35 Gosh. And so where do we go from Caroline's story then? What's the next big change? Lara Feigel: 08:41 Well, I think at this point in a way, it's helpful to look around at what other countries were doing because the kind of changes that followed in England were really led by changes that happened first, in particular in France and in America. Kate Daly: 08:57 Well, that's interesting in itself, isn't it? Because we always say we have a world-leading legal system in this country. But when you look at family law, we are forever following whether that's in divorce law and only just kind of a couple of years ago getting no fault divorce and everything, because that had been, you know, part of the Australian legal system, for example, since the early 70s. So I find it really fascinating that whilst we hold ourselves out as this great legal sort of presence, we're often following. So yeah, so what was happening in France? Lara Feigel: 09:25 Yeah, I mean, I think that's really interesting what you say. And it's partly because we're our common law tradition, which is a sort of brilliantly dexterous element of our legal system that allows it to kind of adapt quickly, also in some ways holds it back because people can't just come in and sort of impose codes of the kind that change things. It's much harder to get that legislative change. So I think what was happening in both France and America was that they'd had revolutions and that these had brought in an idea of rights. And so that those kind of ideas of rights immediately undercut this sense of ownership. People are no longer possessions. Children come with rights of their own. And so in France, in both revolutionary law and Napoleonic law, there's a kind of massive code book that from right at the start of the 19th century, from sort of 1804, it's it's kind of written in there that in the case of a legal separation, so from right at the start of the 19th century, although men do basically own their children within a marriage, as soon as it comes to a legal separation, custody arrangements are to be made based on, for and this is the phrase used, the interest of the child. Kate Daly: 10:34 So that's incredibly the first time when we've got the interest of the child coming in, then, yeah. Lara Feigel: 10:38 Exactly. Yeah. Really sort of way ahead of when you might think it. Like this was totally unheard of in Britain. The idea that you would have a legal statute imposing the interest of the child right at the turn of the 19th century. And my sort of big case study for France is a woman called Georges Sand, a sort of massively successful 19th century novelist, who interestingly had a custody case the very same year as Caroline Norton's in 1836. And where Caroline Norton lost, despite being, in many ways, a very exemplary figure who was found not to have committed adultery, George Sant, who was known to have committed adultery and who had indeed written a series of extremely popular novels about adultery, managed to win her custody case because of this difference in the world. Her very French. Yeah. Yeah. And indeed, the sort of brilliant bit of her court process was when her husband produced a sort of letter in which she was admitting to adultery. And rather than kind of hiding it, her lawyer read the entire letter out to the courtroom because he thought her brilliance as a writer would sort of convince the jury of her sort of sensitivity as a mother, which it did. So you get that happening in France. And then America, in a way, is even more surprising because America was meant to have common law. It was meant to sort of follow English common law. But what was happening was that increasingly American judges were just discarding common law, saying, well, actually, we are no longer bound to England. We are going to form our own legal traditions. And again, what came in there was a sense of the children's interests. And so in America, it's done not through statute but through case law. And so in 1843, you get a judge in Tennessee who discards common law with what he calls its stern and ironbound principles and insists that men and women were created by the same God and therefore have equal rights. And he gives a mother custody of two young children on the grounds that in all cases, the interest and welfare of the child is the great leading object to be attained. And that was a judgment that then would be quoted over and over again, that really kind of allowed judges for the rest of the 19th century to give custody of children to mothers where they felt that the mothers had been the main carriers of these children's lives. Kate Daly: 12:51 It was so interesting, isn't it? So that kind of moves it on a little bit. And then fast forward, then what's the next big step? Lara Feigel: 12:59 So what then happens is that eventually England catches up and it takes till 1886 when the Guardianship of Infants Act is brought in. And this is very much legislation that kind of every sort of 20 years or so there's been a law that has extended Caroline Norton's Act, extends 7 to 16, extends access to custody. And now by 1886, it is kind of nominally an Equal Rights Act that gives courts the power to give mothers custody of children right up until 16. And the kind of principle of welfare is written in for the first time in English law. It says having regard to the welfare of the infant and to the conduct of the parents and to the wishes as well of the mother as of the father. So that's sort of huge progress. But in actuality, when I sort of looked through, I read a thousand divorce files from 1914. I found that it wasn't as progressive as we might hope. Kate Daly: 14:00 Yeah, no, it sounds very progressive on paper, but everything you read and see, like there are films about this, aren't there? And all sorts of different media talk about this. It always feels like up until probably the 60s or 70s, it was very much the children went with the effectively the richer person. Husbands often made a case that they could present better prepare and have better lives for the children, and therefore the children went that way, didn't they? Lara Feigel: 14:28 That absolutely, yeah. How much you spent on legal costs as today sort of made a big difference. And also, I think that sort of middle clause, the conduct of the parents was crucial because the male conduct and the female conduct were judged according to totally different standards. So an adulterous father could absolutely get custody. It was seen as a sort of normal part of the male character. But an adulterous mother, even if she was only adulteress because she'd been abandoned and had to find a man to support her, would lose custody if it was if it was tried in court. Kate Daly: 15:03 And also, adultery wasn't a ground on which a woman could divorce a man for most of the 19th century and earlier 20th century. When did that law change as well? So we've got a lot of different laws going on, haven't we, that absolutely put women at a huge disadvantage when it comes to being able to argue a custody case. So bring us up to date then. What happened in the latter part of the 20th century? Lara Feigel: 15:26 So the kind of next big change is that in 1925, men and women were given equal guardianship of their children. And so that then in theory meant that they had a sort of level field on which to fight for custody. And it's still a problem that the kind of landmark judgments judge women more harshly than men. And this is still this, I think, the really pernicious ideal of kind of what a good mother is. So there's a kind of classic judgment in 1962 by Lord Denning, the Chancellor at the time, that says that even though this woman was a good mother, she can't have custody of her children because to be a good mother is also to be a good wife. And I feel like that sort of doesn't apply in the opposite direction, exactly. Yeah. So I think what then has to change, sort of decade after decade, laboriously with often through case law, is to kind of challenge this idea of what a good mother is and to say that a woman can fall out of love with her husband without it, meaning that she doesn't have the ability to. Kate Daly: 16:27 Yeah, and it's completely incapable of looking after her children, shocked. Exactly. Yes. Lara Feigel: 16:32 And so then, and it's kind of as in each era, it's the kind of social norms that need to change. So eventually adulterous mothers do get custody. But then what happens next is that lesbian mothers lose custody in the 70s and 80s, and even up into the 90s, there are mothers who've left a heterosexual marriage who have then become involved in a lesbian relationship and where they lose custody because and often these judges are saying it's not that she's not a good mother to her child, but it's that the welfare of the child, and the the welfare of the child can be a very slippery principle. But for the welfare of this child, we don't want them to be stigmatized at school. We don't want them to be teased because they've got a lesbian mother, and that it's much until society catches up, we better just put them with our father where they can have a normal life. Quite normal, yeah. Kate Daly: 17:19 Oh my goodness, it's it's amazing, isn't it? Lara Feigel: 17:22 Yeah. And I think the question is really interesting of like, should the law lead society or should it respond to it? Because basically these judges are saying, I'm not myself homophobic. It's just like my hands are tied because society is behind my own views. So should the judges be saying, no, my role is to tell society that this is fine or not? And I think it's not a straightforward question in a way, because English law just isn't based on an idea that judges are social pioneers. Kate Daly: 17:48 Yeah, I know. I know I shouldn't laugh like that, should I? But yeah, you're right. And it's so interesting because I was just reading something on LinkedIn just before we came on as well. And that was saying that they'd done a study and looked at um how women versus men were judged in family cases, and they'd looked at over 2,000 transcripts, and women are still being judged very harshly as mothers, much more harshly than men are in custody cases. Uh, so it's just, it's just I mean, we should bring it properly up to we don't have custody under the law in England and Wales anymore. We have parental rights and responsibilities, so there isn't such a thing as custody. But that's just it's it's such an interesting question. You're right. Should the law be leading social policy, or is there a point to that, which is that that stigma will impact on a child's life? Lara Feigel: 18:34 It's just yeah, it's a thorny one. And what I And I think what it what it reveals in part is just that judges aren't necessarily the right people now that we're we sort of ended up as as in a way we were always going to, in a situation where it's not primarily a legal question, it's really about the sort of intricacy of children's lives and and their sort of day-to-day, what it's like to wake up as this child in that house with in the care of these two people. Like, why do we expect judges to know the best solution? It's kind of that they're trained in a totally different field and suddenly they have to become sort of social workers. Kate Daly: 19:07 But also, I don't I don't think they can because where do you where does that end? Okay, so that's a point on sexual orientation, but why not political views? What if you've got really fringe political views and they're known? Or what about famous people and everyone knows what your mum and dad does? And if your mum and dad have views that they make public on social media, that could make you a target of bullying just as the same. So I just I don't I I can't see how we can say a judge can make that decision about what's in the best interest of a child based on those sorts of characteristics, some are protected characteristics as well. So, how does that not fall foul of equality legislation? I think it's we go down a really rocky road, I think, if we go down that angle. I think that judges should be above that and should lead a moral conversation because that's part of being a society is having a legal system that's fit for purpose. I think it's weak to stand behind it personally. Lara Feigel: 20:08 I think it's also the kind of need for judges to have a sort of holistic sense of the family. And I think one of the problems with the legal cases I've seen now is that there's there's a sense that the welfare of the child is sort of so important that it doesn't matter if the parents fall apart, and that often indeed these legal cases can feel driven to sort of make the parents fall apart. And somehow that there's kind of the the sort of requirements of the judge are both too much and too little in that respect, but they're sort of expected to arbitrate on the whole of the sort of morality of the social world, but they're also not expected to look at all the people involved and try and to come up with a holistic solution. Kate Daly: 20:43 Yeah. Lara Feigel: 20:44 When did the voice of the child come into all of this then, Lara? So I think gradually, I mean, by by the time that 1925 act, there was a sense that children's welfare was instrumental to this process. By the 1960s, some people called welfare officers, who were the kind of forerunners of CAFCAS officers, were often interviewing children in complicated custody cases. And so then it sort of gradually got to the point we're at today where children in about 50% of cases are interviewed at some stage in the process. Either they're made sort of actual kind of awards of court through being appointed a guardian, or they're, or they're just interviewed uh as part of a sort of section seven report by a Kafkas officer. Or in the new Pathfinder courts, children are interviewed by social workers before they even come into court. And I think broadly we're all agreed that it's great that children's voices are heard. I think there's a real danger that it can be even worse for children when they're interviewed again and again and even given their own legal representation, and still they don't get what they're asking for, particularly when they're teenagers. So I think we need to be really careful in a way in sort of what we promise children when we do hear from them and in sort of assessing what it means to hear from children and how much weight we're we're giving their views and how trustworthy we see their wishes and feelings as. Kate Daly: 22:09 Yeah, no, it's it's really interesting and really fascinating. If you were wanted people to know one thing about the family court, Lara, what would it be? Lara Feigel: 22:18 That it's very adversarial, that it can seem designed to be adversarial, and that it involves a ratcheting up of disputes. It's really like, can we look beyond this adversarial process? And certainly the new Pathfinder courts are very much trying to. So I think we have to hope that as they're rolled out more widely, the kind of principle is adopted that there is nothing to be gained from pitting these parents against each other as enemies. Yeah. Kate Daly: 22:44 Yeah. Well, I think the message from my perspective is very much that that once you start this kind of process, I think people go into it, think that the court is going to be some great arbitrator of fairness and truth, and that they will inevitably come out better than their other parent because that's they're going into it thinking that. And it doesn't do that. There is no great arbiter of truth. Everyone has their own truth, it's very murky. I hope that this episode serves as a reminder to people that the court's not the answer. If there is any safe way of staying out of court, and I say that carefully because for some people, the court is the only safe way to progress with this. But if there is any safe way of staying out of court, it's like playing Russian roulette. Don't go there. It's not what you think it's going to be. It isn't going to serve you justice in the way you think it's going to. And trying to maintain some form of relationship with your other parent is super important ultimately. So yeah. Well, I hope that I hope that's what people take from this. Lara, it's been fascinating hearing about you and the work that you do. Where can people find out more? Lara Feigel: 23:51 Well, I'd love people to read my my book, Custody, The Secret History of Mothers, which is widely available. And I'd also love to mention that I write regular blog posts for the Right to Equality website if you'd like to read some reporting on the courts in the present. Brilliant. Kate Daly: 24:05 Well, we'll put those links in the show notes as well. Don't forget you can find me on Instagram and LinkedIn, and you can hear about new podcast episodes by subscribing for updates and visiting thedivorsepodcast.com. Or of course, you can find us on your favourite listening platform. We'd love to know how we can help further. So please share any questions on divorce, separation, or co-parenting with us at hello at amicable.co.uk. You can join our subscription platform to Amical Space, where you can find our community forum, a safe place to ask anything as you go through separation or co-parenting. Members also get free access to our monthly QA webinars and Amicals Divorce Specialists. The link to sign up is on the episode description. Thank you so much for joining me today, Laura. It's been absolutely brilliant talking to you. And thank you, everybody, for listening.