Daily press sensationalises family justice review

03 Nov 2011

The Family Justice Review Final Report has now been published and immediately received much criticism in the daily press.

The Daily Mail and The Daily Telegraph to name but two have specifically stated that the Report confirms fathers will be "denied the legal right to maintain a 'meaningful relationship' with their families". Conversely, the Report in fact confirms that "most children benefit from a relationship with both parents post separation" and "shared parenting should be encouraged where this is in the child's best interests". However, the Report recommends against a change in legislation that will create a legal presumption of shared parenting.

The Report has accurately identified that the real issue is with the public's understanding of the legal concept of parental responsibility and the fact that some parents mistakenly believe this is lost on separation. Married fathers automatically share parental responsibility with the mother and since December 2003, unmarried fathers similarly share parental responsibility if they are named on the child's birth certificate. Parental responsibility continues post-separation or divorce and can only be lost by Order of the Court in exceptional circumstances.

The Children Act 1989 provides that the child's welfare shall be the Court's paramount consideration and, indeed, in the vast majority of cases, an ongoing and meaningful relationship with both parents is considered to be in the best interests of a child's welfare. It is to be remembered, however, that contact is the right of the child and to have changed legislation to provide for fathers to ‘maintain a meaningful relationship' would have had the effect of making contact a parental right as opposed to a right of the child. The Report, therefore, recommends that "focus should instead be on supporting and fostering a greater awareness of shared parental responsibility and on the duties and roles of both parents from birth onwards".

The emphasis of the Report's recommendations is firmly on providing information and education to parents enabling them to settle disputes between themselves, with the assistance of professionals where appropriate and to avoid Court proceedings save in the most difficult of cases. It is estimated that only 10% of separating couples resort to Court intervention in settling the arrangements for their children.

The Report recommends the preparation of Parenting Agreements at an early stage, perhaps even before separation or divorce is contemplated and that these will assist parents in agreeing how they should jointly or individually meet their parental responsibilities in the event that a separation does take place.

The press have also suggested that the Report has failed to recommend any legal rights for grandparents after a couple have separated or divorced. The Report confirms that the Review Panel recognised the important role that most grandparents play in the lives of their grandchildren and that the relationship often continues to be important if the parents separate.

The current legislation requires grandparents to first obtain the Court's permission to pursue an application for contact in favour of their grandchildren where an agreement cannot be reached with the parents direct. The Report recommends that this system continues in order to distinguish legitimate applications from those made by grandparents who do not have the best interests of their grandchildren at heart.

Despite what the press has suggested, whilst there is a two-stage process involved in making an application to the Court, there is in fact only one fee payable and the costs are not, therefore, increased by having to seek the Court's permission in the first instance.

Again, the Report emphasised the importance of information and education in promoting the continuing relationship between children and their grandparents and that the arrangements should be agreed by the parents, preferably in a Parenting Agreement or with the assistance of professionals including mediation.

The Family Justice Review's Final Report, therefore, has not "betrayed the family" as suggested by the sensationalised headline in the Daily Mail, but has, in fact, reiterated the existing paramount principle in placing the child's welfare above the needs of the adults when considering what is in their best interests.