From today, new legislation comes into effect that is intended to affect the way courts will look at how children of separated parents divide their time.
So for cases starting on or after today in the family court, there is a new presumption which judges must apply: that the involvement of both parents in the life of the child concerned will further their welfare, provided there are no safety concerns. “Involvement” in this context means involvement of some kind, either direct or indirect, but not any particular division of a child’s time. It is most definitely not a presumption for a 50/50 split of childcare or of shared residence. The Ministry of Justice says that the change will encourage parents to be more focused on children’s needs following separation and the role they each play in the child’s life. We hope so.
The change is being brought about by the coming into force of section 11 of the Children and Families Act 2014 (which also deals with a whole range of changes to the private and public spheres of family law – we wrote about it here).
In practice, the change “on the ground” may not be huge, as judges are already well aware that by and large children benefit from having meaningful relationships with both their parents, and the welfare of children has been the court’s paramount concern for decades. Where parents are working out the arrangements for their children after their separation without involvement of the local authority, it is only in extreme circumstances that parents are excluded from their child’s life. So whilst the legislative presumption can be seen as a statement of intent and policy, it may not herald a sea change in the way judges deal with cases.
It is interesting that the one other presumption used in children cases is that of non-intervention, known as the no-order principle. This means that the court should not intervene unless it is in the best interests of the child for it to do so. So it will only make a child arrangements order, or specific issue/prohibited steps order, if the interests of the child require it. Where parents are able to agree arrangements for their children after separation, the court will only rarely make an order, if it considers that the children (not the parents!) are better off with one than without.
So the law about private family arrangements for children now contains a couple of presumptions. It has long been the case that a common sense, child centred approach is the norm when judges have to deal with these disputes. Courts, and indeed lawyers and mediators, often have to remind parents that they do not have “rights over” their children, and that the welfare of the children is paramount.
Common sense took precedence in a recent case, where the President of the family Division, Sir James Munby, made it clear that court resources should not be used to micro-manage parental disputes over the minutiae of childcare arrangements, and that parents must be expected to act with maturity and responsibility concerning their children.
The case serves as a sad reminder of the effect of parental conflict and the inability to work together on children. The boy in this case was only 6 years old and his parents had been litigating bitterly for 4 and a half years. They could not agree on anything, even which platform of Clapham Junction railway station they should use to pass the little boy between them for visits. The court sensibly refused to be drawn into which platform, ticket office or other place should be used, saying that it was a waste of court time to decide such things when mature adults should be able to sort that out themselves. These parents also brought to court a fundamental disagreement on the type of dental treatment their son should have, and the President refused to decide on which parent’s preferred treatment should be allowed to go ahead. He said that to do so would set a precedent for the child’s life with every future disagreement over medical treatment being aired before the court. The parents were left without a judicial decision on dental treatment, meaning that they would have to sort it out themselves. This judgment is a warning to these parents, and to other parents who disagree on everything and try to litigate everything, ignoring the effects their never-ending conflict will have on their child.
This strong decision from the leading judge of the family court may signal a move towards the court refusing to be drawn into arbitrating minor matters of dispute, and limiting itself to more important questions relating to children. That will be a positive step, provided that couples can find other ways of resolving these matters. Mediation and collaborative law can be powerful, less stressful alternatives to court proceedings that enable lasting decisions to be made on the basis of welfare of the children, also taking into account the practical considerations of the adults. They can be used at any point in a dispute; although it is never too late to try, it is rarely too early, either.
If you would like to talk to any of us about any aspect of family law, please get in touch to make an appointment. You can reach us on 01223 443333.