In the last week I have come across a couple of bad ideas for the reform of family law. One of the ideas has already passed into law, or at least is about to, and the other is no more than a proposal – a state in which, I would suggest, it should remain.
The first idea is the presumption of parental involvement. Included as section 11 of the Children and Families Act 2014, to be inserted in section 1 of the Children Act, the presumption has belatedly been brought into force, somewhat as an afterthought to the rest of the 2014 Act.
The presumption says that in proceedings relating to a child the court should presume, unless the contrary is shown, that involvement of each parent in the life of that child will further the child’s welfare. Well, what a novel idea. Incredible that no court has thought such a thing previously.
Except that it has. For as long as I can recall, and probably for some considerable time before that, courts have taken the view that it is best for children if both parents are involved in their lives, unless there is a good reason why this should not be the case. The presumption will not therefore make one iota of difference to the outcome of children cases.
What it will do, however, is increase the possibility of argument, particularly in these days where the majority of litigants are unrepresented. Many will erroneously think that the presumption will entitle them to an equal amount of time with the child, which it obviously does not.
In short, the presumption will make no difference, save to the amount of time and argument that goes into sorting out arrangements for children.
The other idea comes from Australia, although it is hardly original, being something that I often heard suggested over the years, particularly by fathers paying child support. The idea is that recipients of child support/maintenance should provide the payer with proof of what they spent the money on.
This, as I’ve indicated, is an old one. Those who suggest it are irate that the parents to whom they pay the support fritter it away on luxuries for themselves, rather than on essentials for the children.
Let’s think about this for a moment. Unless the money that the non-resident parent (‘NRP’) pays is kept separate from the other income of the parent with care (‘PWC’), how is the PWC going to know what it was spent on? Once the money gets mixed up with other income, who can say what money was used to pay for what?
But keeping the money separate does not, of course, solve the issue. All the PWC has to do is use that separate money to pay for things for the children, releasing their other income to pay for luxuries for themselves.
OK, I suppose there could be some way of working out the total amount of money that the children cost to keep and making sure that the NRP pays an appropriate proportion – but that is what the calculation of child support/maintenance (whether by formula or court) attempts to do anyway.
Then there is the policing issue. How on Earth is it going to be checked? Imagine the cost involved and the amount of argument it is likely to cause.
No, definitely a bad idea whose time should never come.
Photo by César Astudillo via Flickr