It’s about the children, not the parents

06 Feb 2012

Friday’s headlines would have you believe that the press have finally cottoned on to the fact that an ongoing relationship with both parents following their separation is the right of the child. However, on closer inspection, it would seem that they are just regurgitating the articles previously printed in recent months with a more ‘appropriate’ title.

The reports suggest that a change in the law is urgently required and that parents (particularly fathers) deserve shared parenting rights. It is true that there is no current presumption of shared parenting but nor should there be, as this would only serve to benefit the parents and not the children who may find that their stability is undermined and their welfare potentially adversely affected.

Judges are well aware that the child has the right to a ‘meaningful relationship’ with both parents and strive to ensure that this is maintained post-separation when the most unfortunate cases come before them in the Court arena. Only in very rare circumstances are Orders made that prevent contact between a child and parent and those Orders are only ever made when it is determined that contact would place the child at risk of serious harm.

The reports also suggest that unmarried fathers have to apply for ‘parental responsibility’ and that the Children Act 1989 is going to be rewritten to remedy this. The vast majority of fathers already share parental responsibility with the mother of their child, whether they are married or not. Married fathers have always automatically had parental responsibility and this continues post-separation and divorce. Since 1 December 2003, if an unmarried father’s name is on the child’s birth certificate he, too, automatically shares parental responsibility with the mother and, again, this continues post-separation. It is, therefore, only those unmarried fathers who have not been named on their child’s birth certificate who are required either to enter into a Parental Responsibility Agreement with the mother or seek an Order of the Court.

The Government commissioned the Family Justice Review which was finalised last November by David Norgrove. The recommendations of the Review were welcomed by Resolution, whose 6,000 members promote a non-confrontational, constructive approach to resolving family disputes. The suggestion that the Government are to invest a further £10 million in mediation services would also be welcome as those lawyers who are members of Resolution firmly believe that for the majority of cases, the Courts are not the most appropriate forum in which to settle parental disputes as to the arrangements for their children. However, it must be borne in mind that not every case is suitable for mediation and the proposed cutbacks in the provision of Legal Aid is only likely to force warring parents into Court without the benefit of appropriate legal advice and assistance.

The Government is due to publish its response to the Family Justice Review today (6 February 2012). I will advise further once their response published.

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