There was quite a lot of debate about the wording of the new section 11 of the Children and Families Act 2014.
You may recall, in the distant mists of time, that the Family Justice Review were asked to consider whether we should incorporate into English and Welsh law the sort of provision that Australia introduced, of there being a starting point in law that it is good for children to spend time with both parents.
The Family Justice Review decided not to, but the Government decided that it did want to consult on whether something along those lines was desirable.
I wrote about the consultation nearly two years ago, here
There were four options consulted on (none of them being the presumption of equal time or shared time that the media reported on, and that the fathers’ rights lobby were asking for. I’ve tried in this article to not split it on pure gender lines – I think that all parents who don’t live with their children would like the Court to have in mind that spending a lot of time with both parents is better for a child than artificially restricting one parent’s time with their child)
- 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.
The Government decided to go with option 1, but this got diluted further in the parliamentary process, until we ended up with this
Children and Families Act 2014
Section 11Welfare of the child: parental involvement
(1)Section 1 of the Children Act 1989 (welfare of the child) is amended as follows.
(2)After subsection (2) insert—
“(2A)A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) 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.
(2B)In subsection (2A) “involvement” means involvement of some kind, either direct or indirect, but not any particular division of a child’s time.”
(3)After subsection (5) insert—
“(6)In subsection (2A) “parent” means parent of the child concerned; and, for the purposes of that subsection, a parent of the child concerned—
(a)is within this paragraph if that parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm; and
(b)is to be treated as being within paragraph (a) unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm whatever the form of the involvement.
(7)The circumstances referred to are that the court is considering whether to make an order under section 4(1)(c) or (2A) or 4ZA(1)(c) or (5) (parental responsibility of parent other than mother).”
[If you want a quick explanation – there’s a presumption that it is good for a child to have involvement with both parents (unless it would cause harm or risk of harm to the child), but that involvement can be ‘of some kind, direct or indirect, but not any particular division of a child’s time’.
It is probably worse for non-resident parents than the current Act, which tended to be interpreted that direct contact for both parents is a good thing for the child, if it can be done safely]
I’m grateful to Noel Arnold for alerting me and others to the fact that these provisions are not yet in force, and indeed, aren’t in any of the commencement orders (that’s the thing that turns a part of the Act from words into actual law to be followed)
Those commencement orders roll out various parts of the Children and Families Act 2014 at various stages this year – 1st April, 22nd April, 13th May, 25th July, 1st September.
Clause 11 doesn’t appear in any of those, and the suspicion therefore is that it won’t be rolled out this year (My own suspicion is that it may not be rolled out at all, as happened with the “no fault divorce” provisions enacted in 1996)
It does appear a little odd to me that this fairly anodyne provision can’t be rolled out at the same time as the change of Residence and Contact to “Child Arrangements Orders” (Translation for Eastenders writing staff “They’ve changed Custody and Access to Child Arrangements Orders” )
I’m not sure what else would need to be done to make those provisions ready to go, and it suggests to me a measure of disquiet that the provisions are not really useful to anyone and would do more harm than good if released into the wild.
There’s a risk, in fact, that for a parent whose contact would be safe, but the parent who lives with a child is hostile to anything more than a birthday and christmas card, the s11 change might make this something that the Court could more easily countenance than the existing position that there ought to be direct contact. There’s statutory sanction for the fact that involvement can include ‘indirect’ contact.
They also seem to set up a situation in which parental responsibility should not be given to a parent (really only a father, since mothers get it automatically) if there’s a risk of harm. That risk of harm isn’t then balanced against the risk of harm if it were not done, or against the possible benefits to the child of doing so. Or if there’s a risk of harm flowing from the mother towards the child as well as from the father towards the child, so that there might be harm to the child either way.
Or indeed that the risk that would warrant not making a parental responsibility order or a Child Arrangement Order that provides for contact flows from that person at all. For example, if a mother wrongly believed that a father was a paedophile and the Court found that he wasn’t, but that having contact would cause the mother emotional distress and anxiety that would impact adversely on the child, the father’s request for contact could be classified as one that puts the child at risk, even though he has done nothing wrong.
There must be a degree of doubt whether rolling out a revised section 1 (via giving s11 Children and Families Act a commencement date) might undermine the existing body of caselaw which was determined under the current s1
“The Courts recognise the critical importance of the role of both parents in the lives of their children. The courts are not anti-father and pro-mother or vice versa… unless there are cogent reasons against it, the children of separated parents are entitled to know and have the love and society of both their parents. In particular the courts recognise the vital importance of the role of non-resident fathers in the lives of their children and only make orders terminating contact when there is no alternative”
Re O (A child :Contact :Withdrawal of Application) 2003 1 FLR 1258
“It is almost always in the interests of a child whose parents are separated that he or she should have contact with the parent with whom the child is not living”
Re P (Contact: Supervision) 1996 2 FLR 314
“No parent is perfect, but “good enough parents” should have a relationship with their children for their own benefit and even more in the best interests of the children. It is, therefore, most important that the attempt to promote contact between a child and the non-resident parent should not be abandoned until it is clear that the child will not benefit from continuing the attempt”
Re S (Contact: Promoting Relationship with Absent Parent) 2004 1 FRL 1279
“Contact between parent and child is a fundamental element of family life and was almost always in the interest of the child… there is a positive obligation on the state and therefore upon the judge, to take measures to maintain or to restore contact”
Re C (A child : suspension of contact) 2011 2 FLR 912
I would be very reluctant to have any of those vital principles, which were determined under the old s1, weakened or put in doubt by a changed s1 with a slightly different emphasis.
[I am sure that some non-resident parents will feel that these principles didn’t seem to get much of a look-in when their own case was decided before a District Judge, but they are principles that can be relied on and pushed under the Court’s nose at the moment, and they are important ones]
I have to say that I greatly prefer the current section 1 of the Children Act 1989, which is just plain and simple that when deciding anything that affects a child, the Court’s paramount consideration must be the child’s welfare.
If and when s11 comes into force, all we have is an embroidering of that position which if anything makes it less clear and less meaningful. It certainly isn’t a victory for those lobbying for a fairer and more equal treatment for parents who don’t live with their children.
[I have to confess that it has never sat comfortably with me that portions of an Act go through parliamentary scrutiny and royal assent, and in effect get voted on by the House of Commons and the House of Lords and win that democratic approval, but ultimately become law on the decision of a single government minister to push the “Release the Clause” button or not. But here, I’d be happy for the button not to be pushed – I think that the clause makes things worse for non-resident parents, and they really didn’t need the deck stacked against them]
My feeling was that ‘contact’ was being replaced by ‘involvement’ and that this would be a retrograde step, and probably one that would not be introduced, given the absence of a commencement order. Indirect involvement seems to be so ephemeral a relationship that it is not worth bothering with. FNF, however, claim that the clause will be introduced in the autumn, though I don’t know where they heard that. The clause does seem unnecessarily wordy, though it is easier to understand by way of a diagram. On the other hand, if you have to resort to drawing diagrams to enable something to be understood, perhaps it is time to return to the err.. drawing board.
Yes, there’s quite a bit of the new Children and Families Act that can only really be understood with the aid of a flowchart. Like you, I don’t think that’s a terribly great way to draft provisions that will mainly be used by people who are not lawyers.
As a lawyer, I have to confess that some of the Transitional provisions are practically unintelligible.
Our main problem is that neither courts nor social workers have shown great understanding of the needs of infants and young children. We have been horrified witnesses of their cries and body language when taken away for overnight stays with the other parent (this included a breast-fed infant). We have also seen the long term adverse effects on some of those children. Fortunately the Australian study on outcomes of different arrangements for children of varying ages, http://www.aifs.gov.au/institute/pubs/fm2011/fm86/fm86e.html
has shown that contact without separation through overnight stays is better for children for four and under. We do hope that this will be incorporated in provisions for contact.
Jean Robinson, President, Association for Improvements in the Maternity Services
As ever Jean, a helpful and informative post. The research you link to makes for interesting reading. There’s scope, I think, for a detailed follow-up study on private law contact outcomes – particularly how children are affected by the long duration of the proceedings and the amount of hostility our current adversarial system builds up.
somewhere, but can’t recall where now, MoJ has said that s 11 will be implemented this autumn after a suitable public re-education programme. When I find it again, I will post the link.
I’ve given up searching for this reference to s 11 coming in later this year – as can’t find it anywhere now although I’m sure I didn’t imagine it!
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