A job for life?
Date: 17 February 2012
Authors: Sarah Whitten
Issue: Vol 162, Issue 7501
Categories: Features, Family, Child law
More needs to be done to provide divorced parents with legal rights and the final report of the independent Family Justice Review, published last November, contained proposals designed to address this pressing issue. The government’s response, published last week, accepts the majority of the review’s recommendations in full. Indeed, the response goes further by recommending that the law should be changed to include a legislative statement of the importance of children having an ongoing relationship with both parents after family separation, where that is safe, and in the child’s best interest.
The government has established a working group of ministers to develop proposals for legislative change, which will be brought forward for consultation later this year. This needs to be at the top of the government’s agenda—it is the responsibility of both parents to raise their children and the right of every child to have a relationship with both their parents. The proposed changes to the law will help to give every child that chance.
Child’s rights paramount
The government’s response stresses that any new legislation should avoid creating any presumption of a parental right to substantially shared or equal time for both parents. It also emphasises that any changes will be complementary to, not in conflict with, the principle in the Children Act 1989 that the welfare needs of the child are the paramount consideration in any decisions made by the court.
The response endorses the review’s recommendation that parenting agreements should be used to help parents agree on the practical arrangements for their children and that this should be central to the process of resolving disputes. The government agrees with the review that consideration should be given to how a signed parental agreement could have weight in any subsequent court proceedings.
The hope is that these changes will help to focus parents and the court on ensuring that the rights of children to maintain meaningful relationships with both parents are upheld. This is already set out in the UN Convention on the Rights of the Child.
Child’s arrangement orders
Other proposed changes include a move away from loaded terms such as residence and contact, which have themselves become a source of contention between parents, to bring greater focus on practical issues of the day to day care of the child. The review recommended that the government should repeal the provision for residence and contact orders in the Children Act 1989 and the government has confirmed that a new “child’s arrangement order” will be introduced. In future there will be no link between contact and maintenance in enforcing court orders. The response said that “these cannot be seen by parents as commodities to be traded”.
It is to be hoped that the government takes swift action to implement the changes, to provide greater certainty and a more consensual approach to dealing with children disputes through the courts.
Alternative routes
The emphasis on the role of alternative dispute resolution, such as mediation, in both the review and the response, is also an important step forward. While some cases will always need judicial input to resolve them, many cases involving disputes (in particular over practical arrangements for the sharing of time) can be resolved with the assistance of an independent mediator. New procedures introduced last April aim to ensure that separating couples undergo a Mediation and Assessment Meeting (MIAM) to determine whether mediation would be suitable for them. The government has already announced that it will be increasing the amount of public funding available for mediation by £10m to £25m per annum.
If implemented, the steps set out in the government’s response to the review will help strengthen parenting, reduce the time it takes cases to progress through the courts, and simplify the family justice system.
Sarah Whitten is a partner, mediator & collaborative lawyer in the family team at Charles Russell LLP.
E-mail: sarah.whitten@charlesrussell.co.uk
Website: www.charlesrussell.co.uk
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