Family Justice Review: Welfare of child the paramount consideration

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The Government has published its response to the Family Justice Review and, on the whole, has confirmed that it accepts the recommendations made.

The response confirms the retention of the overriding principle that the welfare of the child will be the Court’s paramount consideration when determining any application before it and promotes the increased use of mediation and dispute resolution services by separating parents with a view to avoiding Court proceedings.

No doubt the press will leap on the Government’s stated intention to change legislation such that the Court’s focus is maintained on the importance of children enjoying an ongoing relationship with both parents after separation and the perception, therefore, that there will be a presumption of shared parenting. However, it has been made clear that ‘a meaningful relationship is not about equal division of time, but the quality of parenting received by the child’. This, therefore, supports the concept that it is remains the right of the child to have the ‘meaningful relationship’ rather than it being the right of the parents.

The Government also accepted that the Children Act 1989 requires amendment so as to remove provision for ‘contact’ and ‘residence’ Orders and that, in their place, provision is made for a ‘child’s arrangement’ Order. This must be seen as a positive step as it will focus on the practical arrangements for the child, rather than giving the impression that one parent has more control than the other.

The response confirms an intention that separating parents will enter into a Parenting Agreement at an early stage, with the assistance of dispute resolution services and parenting programmes if necessary. Consideration is also to be given to the development of Separated Parent Information Programmes, which are currently only available to those who are already in the Court process, as part of the pre-application protocol. Lawyers and parents alike have long been complaining that attendance on these programmes is directed at too late a stage and that it should, instead, be available as part of the dispute resolution process.

The use of Parenting Agreements and Separated Parent Information Programmes will emphasise the importance of children maintaining relationships with extended family members, particularly grandparents who often provide an important source of stability and reassurance to the children at a time of parental conflict.

Fortunately, it is already the case that the majority of parents are able to agree arrangements between themselves, whether directly or with the assistance of lawyers or mediators. It is hoped, however, that with the increased availability of dispute resolution services, even fewer families will find themselves in the position of having the arrangements for their children decided by a Judge. It is accepted that the issue of enforcement of Orders needs to be addressed. Whilst the Government accepted in principle the recommendation that an application for enforcement of an Order which has been breached in the first year should be heard within a number of days, further consideration needs to be given as to how this can be achieved in practice. It is, therefore, disappointing that the Government has yet to tackle this very difficult and extremely frustrating issue.

The proposed changes will not happen overnight and the Government has set itself a target of April 2013 to report on progress.

This article was written by Dawn Gore, an expert on children matters and family law.