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Co-op (good with kids)

Co-operative Parenting Following Family Separation: Proposed Legislation on the Involvement of Both Parents in a Child’s Life

The Government has published its consultation document on reform of the law for private law children proceedings. Fortunately for me, private law isn’t my bag anymore  (once you’ve spent a day arguing about whether the contact should begin at 4.30pm or 5.00pm, the cut and thrust of private law advocacy tends to lose its appeal).

The consultation document is here:-

The whole nature of the consultation is interesting, because of course, we had a large Family Justice Review which made recommendations about private law, and the Government decided that it didn’t like the suggestion that the law shouldn’t change to bring in any concept of shared parenting. That’s of course, the Government’s prerogative – they took account of the reaction of the public, interested parties and the media to the suggestion that there be no introduction of shared parenting concept to legislation, and that reaction was pretty adverse.

So, this is another crack at a consultation.  (Only this time, the consultation is – in traditional government style – “We’re going to do this, which of these four ways do you want it precisely done?’  Oh, and we’ll make none of the options particularly desirable, but one on offer is less awful than the others, so that when that one triumphs in the consultation, we can imagine to ourselves that it was the overwhelmingly popular way to make this change)

Here are the four options :-

Four different approaches are presented below for amending section 1 of the Children Act 1989 in order to meet the Government’s objectives set out in paragraphs 4.1 to 4.6:

  • Option 1 requires the court to work on the presumption 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
  • Option 2 would require the courts to have regard to a principle that a child’s welfare is likely to be furthered through involvement with both parents
  • Option 3 has the effect of a presumption by 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
  • Option 4 inserts a new subsection immediately after the welfare checklist, setting out an additional factor which the court would need to consider.

And in detail :-

10. Option 1 – The ‘Presumption’ Approach

10.1 Draft clause

This option would insert the following text as a new subsection after section 1(2) of the Children Act 1989 and before the ‘welfare checklist’:

“In the circumstances mentioned in subsection (4)(a) or (4A) the court is to presume, unless the contrary is shown, that the welfare of the child concerned will be furthered by involvement in the child’s upbringing of each parent of the child who can be involved in a way not adverse to the child’s safety”

11. Option 2 – The ‘Principle’ Approach

11.1 Draft clause

This option would insert a new subsection into section 1 of the Children Act 1989, after existing subsection (2) and before the ‘welfare checklist’, as follows:

“In the circumstances mentioned in subsection (4)(a) or (4A), the court shall have regard to the general principle that, irrespective of the amount of contact a child may have with any parent, the child’s welfare is likely to be furthered by the fullest possible involvement of each parent of the child in the child’s life”.

12. Option 3 – The ‘Starting Point’ Approach

12.1 Draft clauses

This option would insert a new subsection into section 1 of the Children Act 1989, after existing subsection (2) and before the ‘welfare checklist’, as follows:

In the circumstances mentioned in subsection (4)(a) or (4A), the court’s starting point is to be that the welfare of the child concerned is likely to be furthered if each parent of the child is involved in the child’s upbringing.”

13. Option 4 – The ‘Welfare Checklist’ Approach

13.1 Draft clause

This option would insert a new subsection immediately after section 1(3) – the welfare checklist – setting out an additional factor which the court would need to consider, as follows:

In the circumstances mentioned in subsection (4)(a) a court shall also, and in the circumstances mentioned in subsection (4A) a court shall, have regard in particular to enabling the child concerned to have the best relationship possible with each parent of the child”.

The consultation ends on 5th September, so if you have an interest in this, I recommend speaking out.

My rough evaluation of the options are that option 4 is, well, how should I put this? You could add a new definition in the interpretation section of the Act  “Wishy washy”  and point straight to this new addition. It adds so little that it isn’t worth adding.  [Frankly, I think that the whole concept that Judge’s aren’t embracing shared parenting because the Act doesn’t expressly tell them to is fairly flawed, but if you want to bring in something to make the key role that both parents have in a child’s life explicit, you may as well bring in something that is more than a polite cough in a corridor)

Option 3 is less wishy-washy, but its a really long way from shared parenting – the suggestion is sort of that any sort of involvement will do.

Option 2 – well the glaring fault with it is this bit “ irrespective of the amount of contact a child may have with any parent”   – I really, honestly, truly, madly, deeply believe that parents aren’t litigating over children in order to get the Court’s recognition that their parenting is “really, really valuable for the child”, it is because they disagree about how much time each should spend with the child.  Contact, and the amount of it, is exactly the thing that people are litigating about.  I see this option being the one that parents who have Residence would favour, and those who are non-resident parents seeking contact (or shared residence) would consider almost worse than what we have now, because it seems to imply that small amounts of contact can still result in a great outcome for children.

Option 1 is the one that we will end up with, because it is the only one that is attractive to non-resident parents. Those lobbying on their behalf will go fairly universally for that one, whereas the anti-shared parenting or ‘cautious about shared parenting’ votes will be split between the other three. It is still fairly wishy-washy, even then.

Surely, if you’re introducing a concept of shared parenting  (and I am fairly neutral about whether that’s a good or bad thing) at least one of the options should be “When the Court decides where a child should live, or how much contact a child should have with a parent, the Court should strive to make an order that allows the child to have a meaningful relationship with each parent wherever possible and where the order made results in one parent spending a significantly greater proportion of time with the child than the other, the Court must have good reasons for doing so, and set them out in a judgment, and gender should never be a reason for that”

(or, even shorter –  There is a rebuttable presumption that a child should spend significant periods of time with each parent, and the Court must consider in each case whether a broadly equivalent amount of time would be the correct outcome.)

(I’m not claiming that this version is by any stretch of the imagination perfect, but if you’re consulting about changing the legislation to mean that the Court should give more attention to shared parenting concepts, shouldn’t at least one of the options be for something that might actually end up with shared parenting?   These four all look to be as meaningful as the parrot-fashion form of words that we waive article 8 in every single family case with precisely the same phrase each and every time and never once actually having regard to it)

If I were a lobbyist for any father’s rights group, I’d be mighty disappointed with what’s on offer. It looks to me like nothing more than a placatory gesture.  I’m not, by the way, advocating one way or the other on whether there should be a presumption or starting point of broadly equal time, but I can’t see how you can have a consultation about shared parenting without at least one of the options being that.

[I should have added, but am doing it now, that given that most private law cases will be dealt with by litigants in person, perhaps this principle should be set out in as plain English as possible, whereas the four options on offer all seem to be very ‘lawyer-y’ and will involve endless debate about shades of meaning)

About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

6 responses

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  2. Pingback: Fathers Day Letter 2012: why the law needs to change | Phil Rance, Father

  3. An open letter to Tim Loughton MP, Parliamentary Under Secretary of State for Children and Families, 24 June 2012:

    The Government now recognises that the paramount interests of a child are served by facilitating and safeguarding its close and meaningful relationship with both its parents, post separation/divorce. In reaching this conclusion, the Government has taken into full and careful account the wishes of its electorate, the realities of 21st century family life, and a plethora of irrefragable psychological and sociological evidence and research, collated over the last decade or so, which plainly demonstrates the emotional, developmental and educational benefits for those children who are permitted to enjoy a shared parenting regime. In short, ‘paramount interests’ equates to ‘shared parenting’ (except, of course, in cases where there is a proven risk of harm).

    The will of our elected Government is clear. It considers that the Children Act (1989) – as well, perhaps, as some judge-made laws which followed in its wake – does not serve the paramount interests of the child in its current form and therefore requires modification and improvement.

    However, regardless of whatever modification the Government makes to the CA, it will be the eventual application of the law by the judiciary which will determine whether or not the will of the Government is enacted in practice.

    What, then, is the best way to ensure that the will of the Government is enacted in practice by the judiciary? In my view, the Government should tap unashamedly into the vast legal knowledge and experience of Sir Nicholas Wall, the President of the Family Division, and of his colleagues in the Family Division of the High Court. The Government should, I would suggest, posit the following very specific question to Sir Nicholas: “In order for the will of the Government to be enacted in practice, what modification to the CA can you suggest?”

    Of course, it may well be the case that the judiciary actually opposes the proposed change! Sir Nicholas has, in the past, voiced his personal objections to a number of Government proposals. Nevertheless, it is imperative that Sir Nicholas provides a comprehensive and constructive reply to the specific question above, rather than simply expressing his personal opinion as to whether or not the CA should be modified in order to promote Shared Parenting. Plainly, it is not for the judiciary to make that decision. That legislative power is for our democratically-elected Government. The duty of the judiciary, I would venture to suggest, is to apply the will of our elected Government – to obey Government – to the best of its ability. For it to do otherwise, either proactively or by omission, would be very wrong.

    Sir Nicholas is fully aware of the scientific evidence in favour of shared parenting. He is fully aware of the benefits to a child of maintaining a close and meaningful relationship with both its parents. We know this because, in the case of Re D (Children) [2010] EWCA Civ 50, Sir Nicholas was presented with a plethora of contemporary scientific evidence and research, which demonstrated, beyond all reasonable doubt, the veritable benefits for children of maintaining a close and meaningful relationship with both their parents.

    To his credit, Sir Nicholas reserved judgment in Re D and gave himself three weeks in which to carefully read and digest this very extensive scientific evidence, running to several hundred pages.

    To his further credit, in his eventual written judgement Sir Nicholas accepted the argument put forward by the litigant-in-person that current family law potentially relegates the harm done to children by giving insufficient weight to the importance of maintaining a close and meaningful relationship between children and both their parents.

    In summary, the judiciary is very aware of the serious harm which can be inflicted upon children when they are denied the right to maintain an on-going, close and meaningful relationship with both their parents.

    However, as was shown in Re D, the judiciary was hand-tied and constrained to apply current law. It could not, itself, introduce the new legal principle of Shared Parenting into the CA. Sir Nicholas has made it very clear that only Parliament has the power to do so.

    Those of us who have lost meaningful contact with our children due to current family law – and who live, day by day, in the soul-destroying knowledge that, according to the science, our children’s futures will be significantly blighted as a direct consequence – very much welcome our Government’s initiative on Shared Parenting.

    However, crucially, the Government should do all that it can to ensure that any modification to the CA will be robust enough to be effective in practice. The best person who can advise the Government on this specific point is Sir Nicholas Wall.

    I respectfully request that you advise me whether or not the Government will be seeking the input of Sir Nicholas on this very specific point.

    Yours Sincerely
    Bruno D’Itri

    • Thank you Bruno – sorry for the delay in approving this comment which was due to me being on holiday, rather than any forces of censorship!

      • Bruno D'Itri

        Ah, the forces of censorship! I have come up against them in the past and am very grateful that they have not been ‘invoked’ on this occasion!
        With regards to the Government’s proposals, I am worried on two counts.
        Firstly, the inexperience of relatively young Ministry of Justice employees coming up with ineffective wording.
        Secondly, our wily old juduciary being against thr introduction of Shared Parenting, and holding back their valuable assistance precisely in order to scupper the will of the Government.
        I will let you know what response, if any, I receive to my letter (my MP, Alastair Burt, has agreed to forward it to Tim Loughton MP).
        Regards, Mr BD

      • I hope you get a response, Bruno. I have to say that your idea of simply asking Wall LJ how to draft the clause to have the desired effect is a very good one, and I hope they take you up on it.

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