Divorced Parents’ Rights

06 Jan 2012

Following on from their reports in November 2011 that the Family Justice Review had failed to recognise father's rights to maintain a ‘meaningful relationship' with their families following divorce, the Daily Telegraph's headline today is that the Government are now considering amendments to The Children Act 1989 such that divorced parents will be given "legal rights to see their children".

The Children's Minister, Tim Loughton, is reported to have stated that "all the evidence tells us that children genuinely benefit from a relationship with both parents". This is already recognised by the Courts and professionals and it is only in the very rare circumstances where the child is at risk of serious harm that a parent is denied contact.

Fortunately, in the vast majority of cases, the parents reach agreement and the Court does not, therefore, need to exercise its discretion. However, in those cases where a dispute has arisen as to the arrangements, the parents are encouraged to discuss the issues and reach an agreement with the assistance of qualified professionals such as collaborative lawyers or mediators. The primary aim of these professionals is to focus the parents' discussions on what is in the best interests of the children's welfare, rather than what they consider to be their own ‘parental rights'.

Before David Norgrove published the Family Justice Review in November 2011, campaign groups were pushing for a presumption of shared parenting. This, however, was dismissed, reportedly as a result of the impact of similar legislation in Australia where it became clear that parents were placing too much attention on quantity rather than quality of contact to the detriment of their children's welfare.

Mr Loughton is stated to have said that "judges made the mistake of seeing shared parenting as being about equality of time". The Courts are already able to make Shared Residence Orders, but there has never been a presumption that "shared residence" should mean that the children spend equal periods of time with each parent. Prior to separation, it would be extremely unusual for each parent to equally share their responsibilities for child care and, indeed, following separation, it would rarely be the case that they could do so.

The article in the Daily Telegraph reports that one in three children "live without their father". Whilst it may well be the case that the majority of children reside with their mother, generally because the father is not and never has been able to care full-time for their children, the vast majority of separated or divorced fathers continue to be involved in their children's lives and enjoy regular and meaningful contact with them.

The Family Justice Review suggested that parents were placing too much focus on the terms "residence" and "contact". It recommended that the Government repeal the provision for such Orders and, instead, develop a "child arrangements Order". The intention being that parents would enter into a Parenting Agreement and only resort to Court in the event of a dispute.

Those lawyers who are members of Resolution, the independent body representing solicitors who specialise in family work, recognise the importance to children that both parents remain involved in their lives following separation and divorce and the benefits of a carefully constructed Parenting Agreement. The focus is and always has been, since The Children Act came into effect nearly 23 years ago, on what is in the best interests of a child's welfare rather than what is best for the parents. Surely, therefore, today's headline in the Daily Telegraph should have been "children are to retain the legal right to see their parents".