One of the most gut-wrenching aspects of separation and divorce is coming to terms with the idea that arrangements will have to be made with respect to the children and the resulting realisation that this may mean that both parties are unable to spend as much time with them as they once did.
Children law has been a thorny issue for a very long time and this is unlikely to change any time soon given that it is so emotionally charged.
Currently, the Children Act 1989 sets out three key principles for all children cases:
- The children’s welfare is the paramount consideration.
- There should be minimum intervention by the courts – i.e. there should be no order unless it is absolutely necessary and in the best interests of the children.
- The importance of ‘parental responsibility’.
There have been a lot of arguments since 1989 for and against the idea of amending the Children Act to include some kind of presumption that both parents should be equally involved in the children’s lives.
A new piece of legislation is currently winging its way through parliament which will amend the Children Act but this will not go so far as to say that parenting is to be shared.
The Children and Families Bill is currently in the House of Lords and rumours have it that the new law will become effective in the spring of 2014. This will be at around about the same time as the implementation of the Single Family Court, as set out in the Crime and Courts Bill.
The Family Procedure Rules 2010 introduced a new focus on mediation and at least attending a ‘mediation information and assessment meeting’ (MIAM). However, this was not compulsory and it placed a lot of trust in lawyers and the courts to encourage this.
The government is now taking a step further by stating in this new legislation that “Before making a relevant family application, a person must attend a family mediation, information and assessment meeting”.
Particularly in private children law (that is to say, cases not involving the local authority and care proceedings), it is hoped this requirement this will reduce the number of cases which actually reach the front steps of the court. If mediation is successful then it will mean a quicker, more amicable, less stressful and cheaper result. Further, it is widely believed that if parents can agree on arrangements for children and if they can both make important decisions for them without too much conflict, children are likely to cope much better emotionally with the separation of their parents. It also enables parents to obtain agreements which better match their aspirations, instead of a court imposing an order which neither parent is happy with.
Unfortunately, there are always going to be those cases where one parent ignores agreements or becomes difficult when trying to arrange mediation, and there are going to be some cases where mediation takes place but it is not effective or constructive.
My view is that the intentions behind this rule are good but I fear that unless there is a change in the attitude of some separated parents, the new requirement will delay rather than cut litigation and this will not be in the best interests of the children involved. Further, it might be argued that mediation stops people having their due day in court.
Of course, there are also going to be those cases in which mediation is not suitable, for example, in emergency protection cases or in cases where there has been domestic abuse. In these circumstances, mediation will remain non-compulsory.
Section 8 orders
If cases are not agreed in mediation then there may be no option for the parties but to request the intervention of the court. The court’s power to make orders regarding arrangements for children is contained within section 8 of the Children Act 1989. This allows the court to grant the following:
- A contact order – requiring the person with whom the children live to allow them to visit or stay with the other person named in the order.
- A residence order (sole or shared) – stating with whom the children will live.
- A specific issue order – dealing with specific questions on the exercise of parental responsibility. Examples include the religion in which a child should be bought up, the school a child they should attend and certain medical decisions.
- A prohibited steps order – preventing one parent from taking a particular step in relation to the child without the consent of the other parent or the court.
The new legislation will do away with residence and contact orders and replace these with ‘child arrangement orders’.
The Act defines a child arrangement order (CAO) as “an order regulating arrangements relating to any of the following –
a) With whom a child is to live, spend time or otherwise have contact, and
b) When a child is to live, spend time or otherwise have contact with any person”.
Shared Parenting or Parental Involvement?
When this new legislation was first introduced, it included a presumption of “shared parenting”. What the government meant by this was that both parents should be involved in the upbringing of the children. It certainly did not mean that each parent will have a right to equal time with the children.
Due to the widespread misinterpretation of the phrase “shared parenting”, though, parliament has instead opted for the term “Welfare of the child: Parental Involvement”, in the hope that this will promote the idea that both parents should be involved unless this would be inconsistent with the children’s welfare. It aims to send the important message that both parents play a valuable role in the children’s life and therefore encourage parents to adopt less hostile positions against each other when dealing with arrangements for them following separation.
A parent would only be covered by the presumption if they can be involved in the children’s life without putting the children at risk of suffering harm in any way. Further, if both parents are covered, the court must still consider whether or not the involvement of one of those parents would further the child’s welfare. That is to say, if it does not help or benefit the child in any way or if the involvement is not consistent with the child’s welfare, the presumption will be set aside. This could give rise to the argument that the court will now have a “get out” clause to oust a parent from a child’s life.
The presumption is to be applied to the granting and removal of parental responsibility. Parental Responsibility is defined as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.
Generally, if a parent does not hold parental responsibility (because they are not married to the mother or on the child’s birth certificate), it can be granted by the court, unless it would be detrimental to a child for that person to have parental responsibility. This reflects the day-to-day reality of most family courts.
What does the bill do in reality?
When I first learned of the introduction of a presumption in favour of shared parenting, my first thought was ‘this could be a nightmare’.
But, having considered the amended wording of the bill, I came to the view that there won’t actually be much practical change in the way cases are handled in court. When advising clients, I try to ensure that they understand that their children have the right to have a relationship with both of their parents and it is the parent’s responsibility to make this happen. It has, for the most part, been a given in most proceedings involving children that they should have a relationship with both parties unless this would be detrimental to their welfare. The new legislation will simply make this explicit.
Hopefully, in time, these new CAOs will lead to parents thinking less about winning and losing. In reality, the only losers in cases where arrangements cannot be agreed by parents are the children. Hopefully then, CAOs will minimise parents losing sight of what is in the best interests of the children and try to work together and cooperate for the sake of their children.
Perhaps the public perception of the roles of mothers and fathers and what is in the best interests of their children will not change at all. It is certainly not going to change overnight. I am sure there will be plenty of people who will say “ah yes…. but my case is different”. And who knows, maybe it is.
Only time can tell.