It’s been a couple of weeks now since the government released its consultation document about the changes it wants to make to the Children Act 1989. The purpose of these proposed changes is to ensure that the courts pay heed to a general principle that parents who are able and willing to play a positive role in their child’s care should have the opportunity to do so, and to reinforce the general expectation that both parents are jointly responsible for the upbringing of their child. The consultation also extends to the question of whether the powers that the court has to make people stick to its orders are sufficient or whether they should be strengthened – we will consider that element at another juncture. Now that the dust has settled, we thought it was time to take you through the alternative suggestions the government makes for achieving its stated aims about supporting coparenting, and what the wider context of these reforms will be.
We have written before about the Norgrove Report which the government commissioned last year to examine the state of family justice in England and Wales. That covered the full sweep of family justice, but one of the recommendations it made was that there should be no changes to the Children Act to uphold expectations of parental involvement in a child’s life. The main reason that the Report recommended against changes was the impact of similar changes in other jurisdictions, notably Australia, where legislation to support shared parenting has not been an unqualified success. In the consultation document the government notes the Australian experience, but considers that lessons can be learned while upholding the principles it is keen to promote – i.e. it was not the idea that was wrong, but its execution.
The government proposes four options for reinforcing coparenting after separation by changing the Children Act.
1. The introduction of a presumption into the Children Act that a child’s welfare is likely to be furthered through safe involvement with both parents unless the evidence shows this not to be safe or in the child’s best interests.
2. Stating a requirement that the courts must have regard to a principle that a child’s welfare is likely to be furthered through involvement with both parents.
3. Providing that the court’s starting point in making decisions about children’s care is that a child’s welfare is likely to be furthered through involvement with both parents.
4. The insertion of a new subsection into section 1 of the Children Act after the welfare checklist (link) setting out an additional factor to be considered, relating to the continued involvement of both parents.
It is intended that the new presumption or principle will apply to all “private law” cases, ie where the court is required to make a decision about arrangements for a child and the local authority is not involved. It will primarily be at play in proceedings for the new “child arrangement orders”, which are now known as contact and residence proceedings, and where the court is considering the grant or removal of parental responsibility. The government states that its preferred solution is the first option, arguably the strongest option on the table. However, it is not simple to make a choice between the proposals as each of the options put forward could have different effects depending on the particular words used. There are so many different permutations for the drafting of what will inevitably be a contentious legal change that it is likely the government will have its work cut out to establish a consensus from those responding to the consultation.
Note that the government is not consulting on whether to make a change supporting the involvement of both parents in children’s upbringing: it has already decided it will do so. The question is how that change is made. This can be contrasted with the position on the enforcement provisions, where the government is also asking for feedback on whether change is needed at all.
CFLP agrees wholeheartedly with the government’s fundamental position that children are likely to do better if their parents can cooperate after separation and both remain involved throughout their formative years, as long as it is safe. Like most legal practitioners, we are concerned that any changes to the Children Act are a heavy-handed way of reinforcing a message which is already very well understood in courts, mediation rooms and family law solicitors’ offices throughout the country. As we have expressed previously, we fear that the removal of legal aid from family proceedings next year will combine with these statutory changes to create a situation where their nuances cannot easily be communicated to those who need to understand them: the focus needs to stay on the children’s best interests after separation rather than any perceived “rights” awarded to their parents. However, we are cautiously optimistic that if the government were to pursue option three and word the resulting statutory amendment in cautious and sensitive terms, the potential for misunderstanding may not be as great as it might otherwise have been. Whatever the solution, both the starting point and the end point should be the same as it already is: the continuing involvement of both parents in the upbringing of their children after family breakdown is generally beneficial to children as long as it is safe and otherwise in their best interests.
Let us know what you think. More importantly, please let the government know and take your opportunity to shape family policy, if you care about it: the consultation closes on 5 September 2012.