Divorcees' access rights legalised to preserve relationships with children

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For the first time the government is enshrining in law the rights of divorced parents to see their children in a bid to end bias towards father or mother.

The new law will form part of a package of family justice measures, following a consultation paper seeking acknowledgement of the importance of children enjoying a relationship with each parent after separation.

Access to children following divorce or legal separationHowever, the government's independent review, the opposition, lawyers and children's charities say that the new law could overburden the judicial system.

Government studies have shown that 90% of children live "mainly" with one of their parents after a divorce, with 88% residing with their mother: an imbalance ministers are keen to correct.

Under the government's 4 options, family courts will be legally obliged to ensure that parent-child relationships continue if a marriage breaks down.

Ministers refer to a 2008 study which claimed children with "highly-involved dads develop better friendships, more empathy and higher levels of educational achievement and self-esteem" and are "less likely to become involved with crime or substance abuse".

The deputy prime minister, Nick Clegg, said that both parents should play responsible roles in their children's upbringing. "We want to make sure that, when parents separate, the law recognises that. Children should have the benefit of contact with both of their parents through an ongoing relationship with them."

"This is why we are publishing proposals setting out that, where it is safe and in the child's best interest, the law is clear that both parents share responsibility in their upbringing."

Earlier this year the government rejected advice from the independent Norgrove review into family justice, which warned of problems in Australia after newly-legislated shared-parenting rights held up child custody cases.

But ministers say its draft clauses will not lead to the courts having to apportion "equal time" or "define the nature" of parental relationships – both given as reasons why the Australian law failed.

The NSPCC does not support the move for new legislation. "The importance of children having a meaningful relationship with both parents is already fully recognised by the judiciary and all those working within the family justice system," the charity said.

"If the government does take this legislation forward the primary focus must remain on the paramountcy principle [putting the child's best interests first] as stated in the Children Act 1989."

"They must be sure that it will not create unintended consequences such as more parents fighting battles in the courts or the focus being on the rights of the parents and not the child."

The Labour party believes the proposed law will lead to judicial confusion and delay, cited by shadow children's minister Lisa Nandy as among the biggest problems for children.

"Instead of producing greater clarity, there is a serious risk the government's proposals will cause greater confusion, more litigation and delay which isn't in anyone's interests, least of all children's," said Ms Nandy.

"It is surprising the government has pressed ahead, against the advice of its own advisor, when similar approaches have worked against children's interests when tried abroad."

"Children's best interests should be the paramount consideration in decisions affecting them. That principle has been clear in law for over two decades. Ministers should think very carefully before they decide to weaken it."

Leading lawyers also believe the new law could create problems for court proceedings. "People will have leave for more appeals, which will mire the courts in confusion and are anyway factored in as the law stands," said Emma Pearmaine, head of family law at Simpson Millar LLP.

"The Australian situation showed that any bias, far from being removed, is shifted away from kids in favour of disputing parents. It's vital that children's welfare is made the priority if any new law is framed."


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