Involved or not involved, that is the question

Family Law|October 22nd 2014

The new parental involvement clause in the Children and Families Act 2014 came into force today. It requires family courts to presume that each parent’s involvement in the child’s life will further their welfare where it is safe and appropriate. But what does this actually mean in reality?

I’ll tell you; nothing.

The clause in the Act has been so watered down as to render it practically meaningless: “‘involvement’ means involvement of some kind, either direct or indirect, but not a particular division of a child’s time”.

It’s hard to see how this clarifies anything at all. Nor what comfort this might give to any parent living apart longing to see their child again, but can’t, because the other parent won’t let them.

We all know this shouldn’t happen, but try telling that that to the thousands of parents out there who find themselves powerless to do anything about the situation without a battle in court.

No one is saying children and their safety shouldn’t come first, but surely there’s nothing wrong with the law stating a presumption that raising a child is best with two parents and leaving it at that? Why does it need to be further confused with words such as “direct” or “indirect”?

The welfare of the child will always remain the paramount priority of the courts, but the clause to give a crumb of comfort to a parent living apart who has suddenly discovered that he (or she) has no automatic right to contact with their child, clarifies nothing. We’re back to square one. They have no rights at all.

Jo Edwards, this year’s chair of family law organisation Resolution, has, I am sorry to say, gone further down the entirely child-centred line and issued a statement which reminded me of an Edwardian nanny.

It quotes her as saying:

“We do remain concerned that, even with the current language, there is the potential for a minority of parents to misunderstand the clause or have an expectation of new ‘rights’. So it is crucial that members of the public and professionals alike understand the implications of this clause – it’s not about equal time for each parent, it’s about making sure that, where it’s in the child’s interest, they should have an ongoing relationship with each of their parents.”

So that’s how she sees it. Sorry, but I couldn’t disagree more.

How dare Resolution wag its finger at a parent desperate to see their child, having spent all their lives with them before the relationship broke down?

In case anyone forgot, the Act is called the Children and Families Act. Where are the needs of the whole family served by this definition of parental involvement?

It’s hard to see how the public is best served by meaningless amendments which the Family Court will doubtless interpret as flexibly as it chooses and in fact does right now. The reality is the measure will make no difference at all to where we currently are.

It is a wasted opportunity, driven by those who don’t see parents as I do: day in, day out, year after year. They are concerned for their children who are growing up without them but the parents are also bereft. I firmly believe they ought to be considered by the law, as part of a family.

Photo by Spirit-Fire via Flickr

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  1. paul apreda says:

    An excellently well written article Marilyn. I’m delighted to see a prominent and well respected lawyer tackling the nonsense being put forward by Resolution. I will be asking Ian Smith (the solicitor who currently support our 3 North Wales meetings) to get in touch as I’m sure we can work together to bring some sense back to family justice. Thanks again, Paul

  2. Nordic says:

    Dear Marilyn
    You got this one spot on. The presumption is at best meaningless and at worst a step backwards as it appears to give legitimacy to the notion that indirect and direct contact are somehow interchangeable substitutes.
    I totally share your exasperation at the unnecessary caveats which makes the clause sound like a declaration of distrust in non resident parents (NRPs). Yet these same NRPs were all once married and many currently married parents will end up as NRPs. How can we be this scared of parents (fathers) post divorce and at the same time promote marriage as the solution to everything and anything? If we really believe the distrust towards NRPs (fathers) expressed by the presumption is justified, then surely we ought to be equally terrified at what goes on pre-divorce inside the glorified institution of marriage.
    I also wholeheartedly support your rebuke of Resolution’s position, but I would not (remotely) describe their position as child centred. The current presumption does not grant the child any rights or say in the matter, but rather ensures that third parties (to the family) have almost unlimited scope for control and interference. As always in this jurisdiction, the name of the child is used (and abused) to pursue agendas which have nothing to do with the real interests of our kids.
    To understand how a truly child centred approach would look I refer you to the Norwegian and Danish Children’s acts. Both include proper presumptions which vest the right to contact with the child (not the parents) and this right is for direct contact (“samvaer” in the local lingo). Both also allow the child to be heard and have direct influence over decisions from an early age. While I agree with you that family law in general ought to be family rather than just child centric, the Nordic presumptions do offer a real world example of what our clause could and should have looked like.

  3. Stitchedup says:

    Well done Marilyn, I agree with you and the comments from Paul and Nordic in particular with respect to indirect contact being considered acceptable, adequate contact able to meet the needs of the child and/or parent.

    Sadly, I found the resolution badge offered no guarantee of a sensitive, non-confrontational approach to my separation. My solicitor and the solicitor acting for the ex were equally bad… the solicitor acting for the ex started the games, threatening the non-mol and occupation order, My solicitor responded by doing the same!! collaborative law wasn’t even discussed let alone on the table as an option.

    As I said in an earlier post… the act has been so watered down it has become impotent with regards to encouraging/supporting meaningful parental involvement of the NRP, let alone something that approaches equal involvement of both parents.

  4. Yvie says:

    Well said Marilyn. You are spot on in your comments. Instead of going round and round in circles and making it more difficult for fathers to retain meaningful contact with their children post-separation, it would be far better if the interests of the family could be considered as a whole post-separation. Shared parenting, including a fairer CSA, and division of child benefits etc should be high on the Agenda so that both parents have an equal opportunity to care and provide for their children.

  5. Michael Robinson says:

    I sometimes wonder how society would accept the state deciding, at the point of birth, whether parents were entitled to involvement in their children’s lives. All very valid points Marilyn, and your point about indirect contact being inserted in the wording is well made. Very well made.

  6. Nick Langford says:

    The clause which redefines involvement to include indirect involvement – which presumably could include something as slight as placing money in a bank account – was introduced in the Lords by Butler-Sloss who was representing a lobby group calling itself the Shared Parenting Consortium, which was actually ideologically opposed to shared parenting and included Coram and the NSPCC. The aim, as I see it, was to render the new clause meaningless.

    As I read it, the clause, even before it entered the Lords, could be used to exclude a parent if that parent’s involvement was likely to put the child at risk of harm. Thus, if the parent’s involvement was likely to cause the other parent to kick off and create conflict with potential to harm the child, then however exemplary the parent’s parenting, their exclusion can be justified. It is the involvement itself, and not the parent, which has the potential to cause a risk of harm. That seems to me a horribly dangerous development.

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