Gingerbread and Family & Parenting Institute welcome the government’s reaffirmation that the welfare of the child should remain the paramount consideration in the family justice system. However, it is deeply troubling that in its response to the Family Justice Review the government lays out plans to introduce legislation which will, in effect, undermine this principle by inserting an additional statement in law [1]. This will fundamentally compromise the ability of the family courts to focus on the breadth of issues that contribute to a child’s ongoing welfare after family separation.
Children in separated families benefit from good quality relationships with both parents, where it is safe to do so. It is vital that courts are able to make decisions based on what is in the best interests of children in each case.
Introducing a new statement in legislation will add a layer of complexity to resolving disputes over children. It risks polarising parents at a time when they should be striving to set aside their differences. It will encourage parents to focus on what they want, rather than seeking a resolution rooted in their children’s welfare.
Contrary to the government’s aims of diverting families away from adversarial legal proceedings, this risks increasing litigious actions and detracting from a child’s best interests. The courts already operate on a pro-contact basis and seek to secure arrangements that promote a child’s ongoing relationship with both parents after separation in the majority of cases.
Legislation is not the best way to get more fathers engaged with their children. Cooperative parenting needs to be established within couple families and early in a child’s life. Encouraging the take-up of parental leave and flexible working options would help parents juggle the demands of paid employment with caring responsibilities. Family services that target fathers as well as mothers would foster parenting knowledge, skills and confidence in both parents. It is these policies that would help parents to share the care of their children successfully in the event of a separation.
Fiona Weir, Chief Executive of Gingerbread, commented:
“This announcement does a profound disservice to children experiencing family separation. Introducing legislation that, in practice, will promote greater contact rights will result in children’s welfare playing second fiddle to their parents’ ongoing acrimony.”
“An additional statement will place an undue emphasis on the amount of time each parent spends with their child. It is not the quantity of time a parent spends with a child but the quality of the relationship between parent and child that is crucial to positive outcomes for children.”
Notes to Editors:
1. The government intends to amend legislation to include a statement that reinforces the importance of children having an ongoing relationship with both their parents after family separation.
2. As part of its review into the Operation of the Family Courts last year, the House of Commons Justice Committee took evidence from a wide range of sources, and published the following assessment in its final report: We do not see any value in inserting a legislative statement reinforcing the importance of the child continuing to have a meaningful relationship with both parents, alongside the need to protect the child from harm, into the Children Act 1989. Such a statement is not intended to change the current position as the law already acknowledges that a meaningful, engaged relationship with both parents is generally in a child’s best interests. The Panel has concluded that the family court system is allowing contact in the right cases; in our view nothing should be done that could undermine the paramount importance of the welfare of the child. [Operation of the Family Courts, para 71, Sixth Report of Session 2010-2012, House of Commons Justice Committee, 2011]
3. Evidence based on the implementation of a similar statement in legislation in Australia showed that:
It obscures the best interests of the child
It reinforces the tendency to shape the dispute in terms of time, rather than focusing on the quality of parenting
Its application in judicial determination and consent orders is not consistently child-focussed
The additional complexity it adds to decision-making confuses rather than clarifies the law for parents and legal professionals
[Evaluation of the 2006 family law reforms. Kaspiew, R et al. Australian Institute of Family Studies, 2009. Parenting dynamics after separation. A follow-up study of parent who separated after the 2006 family law reforms. Qu, L. and Weston, R. Australian Institute of Family Studies, 2010]
4. The vast majority of separating parents make private arrangements around residence and contact for their children; only 10% go through the courts, and these tend to be the most complex and conflicted cases.
[Non-resident parent contact, Blackwell, A & Dawe, F, ONS, 2003. Non-resident parental contact, 2007/8. Lader, D. ONS, 2008]
5. 71% of children have face-to-face contact with their other parent after separation, the majority of which includes overnight stays.
[I’m not saying it was easy…contact problems in separated families, Peacey, V & Hunt, J, Gingerbread, 2009]
6. The latest court statistics from 2010 show that, out of 95,460 applications for contact made to the courts, only 300 orders were refused.
[Judicial and Court Statistics 2010, Ministry of Justice, 2011]
7. Evidence based on detailed analysis of court files with a contact application showed that:
- Most cases ended with face to face contact. Where they did not this was usually because the applicant withdrew from proceedings.
- Non-resident parents were largely successful in getting direct contact where there had been none and in getting the type of contact sought.
- There was no evidence that non-resident parents as a group are systematically unreasonably treated by the family courts. On the contrary the study shows that the courts start from the position that contact is generally in the interests of the child.
[Outcomes of applications to court for contact orders after parental separation or divorce, Hunt, J & Macleod, A, OXFLAP, 2008]