22 October 2014 sees s.11 of Children and Families Act 2014 come into force. From today it is written in statute law that the Family Court making decisions about arrangements for children..
“is to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.
“Involvement” means involvement of some kind, either direct or indirect, but not any particular division of a child’s time.”
So will this make a real difference to the court’s approach? Or is it just symbolic? To answer that it is worth looking at the background to how this change came about, and what the legal position was before.
Background to legal change
David Norgrove’s Family Justice Review considered the question of “shared parenting”. The review took into account the views of those who thought the starting point for all children of separated parents should be an equal division of time with each parent, as well as those who cautioned against adopting that approach and pointed to lessons learned in Australia where a presumption of shared care had been introduced. The interim report published in 2011 recommended:
“no legislation should be introduced that creates or risks creating the perception that there is a parental right to substantially shared or equal time for both parents; and a statement should be inserted into legislation to reinforce the importance of the child continuing to have a meaningful relationship with both parents, alongside the need to protect the child from harm.”
The government realised this was potentially a political hot potato. Their response to the interim recommendation was:
“the principle of continued shared parenting after separation underpins the approach which we have taken on private law. …..children benefit from both parents being as fully involved as possible in their child’s upbringing, unless there are safety or welfare concerns…..This is a sensitive issue with strong opinions on both sides of the debate…..The Government believes that there should be a legislative statement of the importance of children having an ongoing relationship with both their parents after family separation, where that is safe, and in the child’s best interests.”
Further debate followed before the wording of the legislative statement was determined in parliament. “Meaningful” or “ongoing” relationship became “parental involvement” and an amendment to the Children Act was set out in the Children and Families Act 2014 which brought in other changes including the change from “contact” and “residence orders” to “child arrangement orders”. Those key changes were implemented in April 2014 but the introduction of parental involvement was, rather oddly, delayed. There was talk of it being implemented “in the Autumn” but no action seemed to be taken. Was it to be kicked into the long grass never to actually come into force? Then quietly, with little fanfare a press release from justice minister Simon Hughes announced the change would come into law on 22nd October:
“No parent should be excluded from their child’s life for no good reason. This change in the law is not about giving parents new ‘rights’ but makes clear to parents and everybody else that the family courts will presume that each parent will play a role in the future life of their child”
The law before the change
The Children Act is very clear: where a court is considering questions about a child’s upbringing welfare is the paramount consideration. There is a checklist setting out what must be considered when looking at welfare including the child’s emotional needs. Over the years in landmark decisions case law has been developed which makes it clear that the starting point is that children benefit from spending time (or having contact as it used to be called) with both parents. There was a clear presumption that it is in a child’s best interests to have contact with the parent they did not live with.
What will the change mean?
Many think the change is something of a damp squib. Those who argued for a presumption of shared parenting are disappointed with the watered down legislative statement. Others say in reality little will change as the court’s approach has long been to presume parental involvement is good for children.
What the change does mean is that it is now spelt out clearly in the statute law that as long as it is safe, children should have both parents involved in their lives. These days when many people navigating the court system are doing so without the benefit of legal representation, having the presumption set out in the Act rather than in case law and law books will be helpful. The change also has symbolic importance recognising that both parents should have a role to play in a child’s upbringing.
All decisions about arrangements for children must still have welfare as the paramount consideration, and the presumption is written as the starting point with the proviso “unless the contrary is shown”. This means that it is still open to a court to decide that in some circumstances a parent should not have any involvement in their child’s life, for example if this would present an unmanageable risk to the child’s safety or well-being. It also means that there is nothing set out in law saying how much time a child should spend with each parent and it comes down to the welfare of that particular child in each case.
The change in law will apply to cases started on or after 22nd October 2014, not to cases which are already going through the courts.
How should you make arrangements for your children?
Our team of family lawyers in Newcastle and South Shields can give you advice and guidance about making arrangements for you children after a separation. Where possible we will help you keep it out of court and reach agreements through mediation or collaborative law. If court proceedings are necessary we have the expertise to represent you professionally to help you achieve the best outcomes for your children.
Elspeth Thomson is a children law expert. She is a Resolution accredited specialist and a member of the Children Panel. Elspeth sits on the national committee of Resolution and regularly delivers Children Law updates at the Resolution national conference