Consultation on parental rights after divorce launched by the Government

The Consultation outlines four options for achieving shared parenting with a view to amending the existing law in section 1 of the Children Act 1989

What is the current law?

Section 1 of the Children Act 1989 (“the Act”) provides that the child’s welfare shall be the court’s paramount consideration when the court determines any question with regard to either:

• The upbringing of a child; or
• The administration of a child’s property or the application of any income arising from it.

The “Welfare Checklist”
Section 1 of the Act also provides what is known as the “Welfare Checklist”. When, amongst other things, the court is considering whether to make, vary or discharge what is known as a Section 8 order and the making, variation or discharge of that order is opposed by any party to the proceedings, the court is required to have regard to:

• The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
• His physical, emotional and educational needs;
• The likely effect on him of any change in his circumstances;
• His age, sex, background and any characteristics of his which the court considers relevant;
• Any harm which he has suffered or is at risk of suffering;
• How capable each of his parents and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
• The range of powers available to the court under the Children Act in the proceedings in question.

Proposed changes by the Government in the Consultation paper

Ministers believe that the current legislation – setting out the principle that a child’s welfare is always paramount in any family court decision about their future – creates a perception that the law does not fully recognise both parents’ roles and there is an inbuilt bias towards one or other parent – more often than not towards the mother. By emphasizing shared parenting in the law itself, Ministers believe this will encourage more separated parents to resolve disputes out of court and agree care arrangements that fully involve them both.

The consultation also asks how to toughen sanctions to enforce breaches of court orders regarding care arrangements – including, where there is a willful refusal to comply with the court, short-term punitive action to protect the longer-term interests of the child.

The four options outlined in the consultation are:

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.  This is the Government’s preferred option.

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 sub-section immediately after the welfare checklist, setting an additional factor which the court would need to consider.

The consultation closes on 5 September 2012.
How does the law currently work in practice?

Although not expressly spelt out in the Children Act 1989, the family courts and family law specialists already operate on the basis of the proposed presumption 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.

It is already the Family Court’s widely held views that children benefit from having good relationships with both parents when a family separates.

The Consultation has therefore come as a bit of a surprise to some members of the  legal profession. Some practitioners already take the view that the proposed changes in the Consultation may end up bringing confusion which will lead to more litigation, causing more delay and expenses for families that can ill afford it – more so as from next year, when the drastic changes in legal aid are introduced.

If you would like further advice in connection with the matters raised in this article then please contact Miss Vincent in our family department on 01926 422 101