Family Justice reform: the Government proposes further changes
In November 2011, a panel chaired by David Norgrove published its final report
after being asked to review the family justice system in its entirety
. The report felt that the system did not work as effectively
as it might do in its current state and proposed several reforms
, from continuity of judge during a case to reviewing orders relating to children some months down the line, in order to evaluate their effectiveness.
Within the report, the panel decided that there would be no need for legislation which formally recognised the idea of ‘shared parenting’
. The notion of ‘shared parenting’ would mean a formal arrangement for the care of children by both parents
, including joint residence. Currently in most cases, residence will fall with one parent, often with specific arrangements in place for contact with the other party.
These new provisions are set to apply in private children matters
(cases in which a child’s parents cannot reach agreement
as to issues such as residence and contact.)
Although the Government have recognised the panel’s reluctance to formalise shared parenting ‘on the grounds that it risked creating a perception of a parental right to shared or equal care,’ it has now announced plans to amend the Children Act 1989
so that it ‘emphasises the importance of children having an on-going relationship with both of their parents
following family separation, when it is in the child’s interests.’ It has said that it ‘wants to send a clear signal that both parents remain responsible
for the care of their children when families separate.’
So what would the proposals mean in practice?
The key legislation for child-related matters is the Children Act 1989. The Act classifies a child’s welfare as the court’s ‘paramount consideration’ within the proceedings. The proposals would formally amend the Act so that there would be a legal presumption that shared parenting would apply when separation occurs
, unless it would not further the child’s welfare. Any parent who opposed this would be able to do so, but would need to present a case
as to why the presumption should not apply.
There has been some opposition to the Government’s plans, with the Law Society stating that ‘the welfare of children must always come before the rights of parents
and no legislation should create or point to a perception that there is an assumed parental right to substantially shared or equal time for both parents
.’ They feel that existing legislation is adequate and the courts already operate on the basis that a child’s welfare is likely to be enhanced if both parents are involved in their lives. The House of Commons Justice Committee also voiced its reservations, having previously said that legislating in this way would undermine the child’s welfare as a principal consideration
The notion of ‘shared parenting’ is clearly one that has sparked controversy in the past
and this looks set to continue. A number of countries, including Australia, have had shared parenting laws in place for many years. It remains to be seen whether this country will still follow suit.