The Children and Families Act 2014 came into force six months ago today. The Act put into place some of the Family Justice Reforms that had long been discussed and debated. One of the major changes to family law was that residence and contact orders were replaced by child arrangement orders. Today section 11 of the Act comes into force and introduces a new presumption of ‘continued parental involvement’. The presumption only applies to family proceedings commenced after 22nd October 2014.
Section 11 of the Children and Families Act inserts into section 1 of the Children Act the following:
Welfare of the child: parental involvement
(1) Section 1 of the Children Act 1989 (welfare of the child) is amended as follows.
(2) After subsection (2) insert—
(2A) A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.
(2B) In subsection (2A) “involvement” means involvement of some kind, either direct or indirect, but not any particular division of a child’s time.” ’
The origins for this presumption stems from groups for father’s rights pressing for the need for a presumption in law that children should spend equal time with each parent. There was a lot of discussion in the media and the government as whether to introduce the shared care principle sought in the main by father’s rights groups and the government.
The concept of a presumption of shared parenting was considered by the Family Justice Review. The Review concluded ‘there should not be any formal legislative recognition of the importance of children having a meaningful relationship with both parents post separation’, as it could create an impression of a parental ‘right’ to a particular amount of time with a child, which would undermine the founding principle of the Children Act 1989 set out in section 1 that the welfare of the child is paramount. One of the arguments against a presumption of shared time is that it creates a sense that children are the property of their parents rather than placing welfare at the heart of the decision making. It is essentially a welfare v rights argument.
The Family Justice Review considered the 2006 Shared Parental Responsibility Act in Australia where there is such a presumption and which had according to a comprehensive Australian Institute of Family Studies review led to inappropriate child arrangements being ordered by the courts and agreed by parents where there were concerns as to a child’s safety. The review found that the ‘meaningful relationship’ provision in the Australian Shared Parental Responsibility Act had played a role and that too much emphasis was placed on the presumption.
The Australian review found that its family law legislation had become complex and was often misinterpreted in this area with lay people finding it difficult to understand. The Australian judiciary have had much discussion on the issues of what constitutes a meaningful relationship and how that is facilitated by the court. Academic debate on ‘meaningful relationship’ in Australia has centred around what activities are important to this as a concept and how performance can be evaluated.
Despite the Family Justice Review’s conclusion, the government inserted a presumption by way of section 11 of the Children and Families Act 2014. The presumption is not what was originally envisaged by many groups and parts of the government and only goes as far as stating ‘presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.’
It is interesting that the section 11 of the Children and Families Act defines involvement as ‘involvement of some kind, either direct or indirect’ which reflects that child arrangement orders made that a child will spend time with a parent must be in their best interests and that in some cases only indirect contact will be in a child’s best interests.
Although the Family Justice Review Family states that ‘our proposals would help demonstrate the government’s commitment to the United Nations Convention on the Rights of the Child (UNCRC), to which the United Kingdom agreed to be bound in 1991, it is disappointing that there was no recommendation to incorporate the UNCRC into domestic legislation. I consider it to be a missed opportunity that despite talk of reform and change we are no closer to full incorporation of the Convention into UK legislation. It should be noted that Wales has passed a measure which impose a duty that they shall give due regard to the Convention and Optional Protocols when making decisions about how to exercise their functions. As explained by Rights of the Child UK ‘the Welsh Measure does not amount to direct incorporation of the Convention, in part a result of the limitations of the devolution settlement at the time the legislation was passed.’
It is generally agreed that section 11 does not make any great changes to the way that the Children Act 1989 operates in practice as it does not make the presumption that a child should spend equal amounts of time with both parents. The presumption created that ‘involvement of that parent in the life of the child concerned will further the child’s welfare’ is already reflected in case law and in the approach of the family courts. The Family Court remains bound by the paramountcy principle as set out in section 1 of the Children Act 1989 and in some instances, depending on the facts of the case, it will be in a child’s best interests for there to be no contact with a parent or for that contact to be limited to indirect activities and indirect involvement.
Louise Rae is an Associate Lecturer at Lancaster University, and a Barrister at St Johns Buildings, Manchester.