Professor Chris Barton emailed me this morning with a link to the Government’s consultation paper, which proposes changes to the law with regard to shared parenting. Tongue-in-cheek, he asked me if I had already memorised it!
In my opinion, much of the unhappiness and aggravation presently endured by separating parents when reaching decisions about the future parenting of their children is entirely needless. At present, when a court makes an order, it considers a number of factors set out in the Welfare Checklist. That list is wholly child-focused, with no consideration given to the parents’ roles. What this means in real life is that parents can find themselves fully involved with their children’s lives one day, and the next day not at all, when one parent decides to play judge and jury because there is no law to say “no”.
This is how the Children Act 1989 begins:
1 Welfare of the child.
(1) When a court determines any question with respect to—
(a )the upbringing of a child; or
(b) the administration of a child’s property or the application of any income arising from it,
the child’s welfare shall be the court’s paramount consideration.
(2) In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.
You will note that the rights of the parents to be involved are conspicuously lacking and I have written on several occasions how easy it would be simply to amend just this section of the Act, recognising that parents too have rights to interact with their children post-separation, but always subject to the ‘welfare of the child being paramount’ principle. It could be done without great cost, and parents would then have similar rights to those enjoyed by parents in Scotland. Well, it seems the Government has been thinking on similar lines!
The new proposals set out four different options for amending Section 1 of the Children Act 1989. As summarised in Family Law Week, these are as follows:
Option 1: requires the court to work on the presumption that a child’s welfare is likely to be furthered through safe involvement with both parents – unless the evidence shows this not to be safe or in the child’s best interests.
This is the Government’s preferred option.
Option 2: would require the courts to have regard to a principle that a child’s welfare is likely to be furthered through involvement with both parents.
Option 3: has the effect of a presumption by providing that the court’s starting point in making decisions about children’s care is that a child’s welfare is likely to be furthered through involvement with both parents.
Option 4: inserts a new sub-section immediately after the welfare checklist, setting an additional factor which the court would need to consider.
There have been a number of objections to any change at all, and Chris Barton knows full well what I think about the “Great and the Good”, who steadfastly prefer to focus only on the children of a separating family!
His email immediately took me back to my recent Oxford trip, where the assembled judges, legislators and academics all expressed strong opposition to “tinkering” with the Children Act 1989. It made me squirm in my seat, watching the entire hall nodding sagely in unison. I thought of all the clients I have represented, past and present, who of course care deeply about their children. They have been horrified to discover that, when separating, they may be immediately cut off from their children because the law gives them short shrift and more importantly, no steer. So a parent left “in control” of the children can exercise his or her decision at will. Then again, the vast majority of separating parents do reach agreement but tell me they would prefer a steer in law to assist them reach a decision. Only the most intractable of disputes however ever reach the ears of the “Great and the Good”. So perhaps we are coming at this subject from a completely different perspective.
Thus, as regular readers will recall, I was less than overwhelmed by the publication of David Norgrove’s Family Justice Review in November 2011. I criticised that report on the family justice system for lacking flair. I believed that the Family Justice Review had provided the chance for a much-needed and necessary change to help separating parents. I regretted that David Norgrove and his panel had missed a great opportunity to put matters right.
It has been a busy few weeks here at Stowe Family Law, shuttling between our firm’s offices. Last week I visited all three offices; this week I have been based in London, returning to sodden Yorkshire only last night. So, my apologies for posting belatedly on this subject, because it did need some thought. My conclusion, as Prof Barton wisely guessed, is that despite all the flak attracted by the Consultation paper, I really like what the Government has produced.
Take this extract, for example:
The decisions made by family courts about the upbringing of a child are based on the principle that the child’s welfare is the paramount consideration. The benefit of ongoing involvement with both parents is already factored into these decisions, but it is not explicitly stated in the legislation that guides this process (the Children Act 1989). This has contributed to a perception that the law does not fully recognise the important role that both parents can play in a child’s life.
And surely that’s quite right?
Then there is this:
The majority of parents who separate reach their own agreements about the care arrangements for their children, and many manage this in a co-operative way, taking account of the child’s needs. When disputes about these arrangements arise, however, there is a risk that children’s needs are overlooked. Whether courts are involved or not, in too many cases one parent is left in a position where it is very hard to retain a strong and influential relationship with his or her child. This can result in children losing contact completely with one parent (usually the father), often with a lasting impact on their lives. The Government firmly believes that parents who are able and willing to play a positive role in their child’s care should have the opportunity to do so. The aim of the legislative amendment is also to reinforce the expectation at societal level that both parents are jointly responsible for their children’s upbringing.
Such statements won’t placate those parents at the other end of the scale, who want nothing less than 50:50 shared care, but they certainly please me. These few lines summarise all that I have ever campaigned for in relation to this most difficult of topics. I don’t support a strict 50:50 division of time, because I think that it can adversely affect a child’s welfare. I should also (and again) emphasise that yes, I agree that the child’s welfare should always take precedence. But overall parents rights have been ignored in law for too long and there has thus been no steer to give clients, and too much opportunity to take advantage of the lack of such steer by an embittered spouse. In a society where increasingly fewer couples have access to lawyers, it is important that the law is as clear as it can be. Even where as in this case, there is no perfect solution that will satisfy everyone.
And so I wholeheartedly support the Government’s preferred option: an amendment to existing legislation, inserting the following text as a new subsection after section 1(2) of the Children Act 1989 and before the Welfare Checklist:
“In the circumstances mentioned in subsection (4)(a) or (4A) the court is to presume, unless the contrary is shown, that the welfare of the child concerned will be furthered by involvement in the child’s upbringing of each parent of the child who can be involved in a way not adverse to the child’s safety.”
This strikes me as bang on the money. It acknowledges the rights of both parents, in law, to play a role in their childrens’ lives post separation.
I also support the Government’s proposals to enforce orders, which are being flouted too easily by some parents. It is wrong to ignore the fact that some parents use their children as chess pieces, and play a cruel game. Sensible measures won’t stop all such games in their tracks, but may make parents think before acting.
None of this has predictably placated the founder of Fathers 4 Justice, who described the proposals as “the worst Father’s Day card ever for dads”, because the Government “simply could not strengthen something when the court of family law is absolutely rotten”
However, it is the overwhelming criticisms by experienced family lawyers that I find difficult to understand. The Law Gazette carried the headline, “Lawyers slam shared parenting plan”. In its article, the head of the Family Law Bar Association described the proposals as “political posturing” and a spokesman for the family lawyers’ group Resolution said that the proposal would have little effect upon the law, but risked placing the demands of parents over those of children.
The Chair of the Law Society’s Family Law Committee seems to have gone even further, describing the change as “unnecessary” and “populist” and went so far as to say that coupled with mediation, it could undermine the safety of children. Over at the Solicitors Journal, similar criticism has come thick and fast. I am left wondering whether these lawyers are reading the same document as me? “New joint parenting laws are not just unecessary they are dangerous” is the shrill headline. Another solicitor states “the danger is that it takes away from the principle that the child’s interests should be paramount.” But with respect, that is precisely what it does not do. It is all utter nonsense.
Personally and drawing upon my own, everyday experiences, the overwhelming majority of my clients are sensible loving parents who would appreciate an understanding of the role they play, in law. And if it works in Scotland, wont it work here too?
The Government’s consultation is open until 5 September 2012, and I do not doubt that many of my readers will wish to have their say, whether they are for or against. The authors are particularly interested to hear about international experiences, given that the Norgrove report rejected legislative change based on other countries’ experiences of shared parenting.
If you wish to submit a response to the consultation, you can do so here – but I, too, would be interested to hear what you have to say!