Recent Government proposals to introduce a legal presumption of shared parenting following the breakdown of a relationship have been criticised as counter-productive.
The plans to amend the Children Act 1989 aim to strengthen the relationship between parents and children by enshrining in law the presumption that both parents have the right to equal contact with their child.
It has long been acknowledged that it is in a child’s best interests to have contact with both parents and this is the current starting point for the courts before applying a checklist of factors designed to consider the welfare of the child. These factors include the ascertainable wishes and feelings of the child concerned, taken in light of their age and understanding, the child’s physical, emotional and educational needs and the likely effect on the child of a change in circumstances.
Law Society President, John Wotton, has said that the change could lead to unrealistic expectations from fathers, with a huge rise in fathers asking the courts for ‘equal time’, which would undermine the Government’s drive towards mediation and out-of-court settlements. He further stated that the Government should avoid any implication in the statute of any right to equal time with a child, or any prescription of appropriate amounts of time.
Currently when any decision is being made by the court in relation to a child, the welfare principle is applied which states that the child’s welfare shall be the courts paramount consideration. This principle does not consider the rights of the parents, but rather makes the welfare of the child the most important factor to be considered.
John Wotton has stated that:
“The primary focus should be on the rights and welfare of the children, not those of parents. The principle that the welfare of the child is the court’s paramount consideration should be maintained.”
As the law currently stands, the court will make a decision as to contact by looking at what is best for the child in light of the circumstances and any move to prioritise the wishes of the parents is likely to cause concern that the child’s best interests are not being met.
The consultation also proposes changes to improve the courts ability to enforce orders. Currently the court has various powers to enforce contact orders, including penalising in costs the party who is breaching the contact order, holding the individual in contempt of court or in extreme cases transferring residence of the child from the parent with care who is preventing contact to the other parent.
Whilst these enforcement methods are available, they are often ineffective and the recent proposals would include ensuring that a case returns to court quickly where an order is breached within the first 12 months, and imposing penalties such as the withholding of passports and driving licences and the imposition of a curfew order.
It is questionable whether these reforms would work in practice without affecting the child’s welfare, for example where the parent needs use of a car to drive the child to school, removal of a driving licence would not be a practical method of enforcing a court order.
The consultation runs until 5th September 2012 and it remains to be seen whether any of these changes will be implemented however if you need advice on any of the issues raised, or any general advice in relation to children then our experienced team are happy to advise.
