Cooperative parenting following family separation: Proposed legislation on the involvement of both parents in a child's life
Source: UK Department of Education - General article - 13 June 2012, Updated: 10 July 2012
- Launch Date: Wednesday 13 June 2012
- Closing Date: Wednesday 5 September 2012
The majority of parents who separate reach their own agreements about the care arrangements for their children. However, when disputes about these arrangements arise, there is a risk that children's needs are overlooked. In too many cases one parent is left in a position where it is very hard to retain a strong and influential relationship with their child.
The Government firmly believes that parents who are able and willing to play a positive role in their child's care should have the opportunity to do so. The aim of the proposed legislative amendment is to ensure that this happens in court cases and to reinforce the expectation generally that both parents are jointly responsible for their children's upbringing. The Government also believes that a tougher approach is needed in cases where court orders are breached, and it intends to explore the scope for additional enforcement sanctions for the courts.
This consultation includes options and questions on how court orders in private family cases regarding the care of children can be more effectively enforced.
This consultation relates to the law of England and Wales, and these proposals do not therefore extend to Scotland or Northern Ireland.
You can download the consultation response form from the associated resources section, and submit your completed response via the
online form
Associated resources
The Consultation Document:
Co-operative Parenting Following Family Separation: Proposed Legislation on the Involvement of Both Parents in a Child's Life
Source:
UK Department of Education - General article - 13 June 2012
Consultation:
- Launch Date 13 June 2012
- Respond by 5 September 2012
- Ref: Department for Education
The majority of parents who separate reach their own agreements about the care arrangements for their children. However, when disputes about these arrangements arise there is a risk that children's needs are overlooked. In too many cases one parent is left in a position where it is very hard to retain a strong and influential relationship with his or her child. The Government firmly believes that parents who are able and willing to play a positive role in their child's care should have the opportunity to do so. The aim of the proposed legislative amendment is to ensure that this happens in court cases and to reinforce the expectation generally that both parents are jointly responsible for their children's upbringing. The Government also believes that a tougher approach is needed in cases where court orders are breached, and it intends to explore the scope for additional enforcement sanctions for the courts. This consultation includes options and questions on how court orders in private family cases regarding the care of children can be more effectively enforced.
This consultation relates to the law of England and Wales, and these proposals do not therefore extend to Scotland or Northern Ireland.
Co-operative Parenting Following Family Separation: Proposed Legislation on the Involvement of Both Parents in a Child's Life
A consultation to:
Separated parents, grandparents, family law professionals, stakeholder groups, service providers
Issued: 13 June 2012
Enquiries to:
- If your enquiry is related to the policy content on shared parenting described in the consultation, you can contact Richard Neville at the Department for Education by telephone: 0370 000 2288 or e-mail: sharedparenting.consultation@education.gsi.gov.uk
- If your enquiry is related to the policy content on the enforcement of court-ordered contact, you can contact Jahanara Salihi at the Ministry of Justice by telephone: 0203 334 3555 or email: general.queries@justice.gsi.gov.uk
Contact Details:
If you have a query relating to the consultation process you can contact the CYPFD Team by telephone: 0370 000 2288 or via the Department's
'Contact Us' page.
1 Introduction
1.1 The Family Justice Review, commissioned jointly by the Department for Education, the Ministry of Justice and the Welsh Government published its final report in November 2011. The Government published a formal response to this report on 6 February 2012, setting out how it intended to reform the family justice system in the light of the Review's recommendations.
1.2 The Government accepted the vast majority of the recommendations made by the Review. Work is underway on a package of reforms to the private law system which focuses on helping separating parents reach agreement between themselves on care arrangements for their children, without the need for court intervention.
1.3 These reforms are part of a wider commitment to support the growing trend in society for both mothers and fathers to be involved in the upbringing of their children from the outset. The driver behind this is that children generally do better if both their parents are involved in their lives, irrespective of whether the parents live together.
1.4 We fully support the Review's emphasis on the need for reforms based on the principle of continued shared parenting after separation. We believe, however, that more can be done to emphasise this principle in two areas that go to the heart of public confidence in the private law system.
1.5 This consultation therefore seeks views on how the coalition Government:
a) should amend the Children Act 1989 to reinforce the principle that both parents should continue to play a role in their child's care post-separation, providing that this is safe and appropriate. We are seeking your views on the potential impact of four options for achieving this objective
b) could strengthen enforcement measures available to courts to deal with breaches of court-ordered arrangements for contact. We are seeking yourviews on the need for new measures and the potential impact on families they are applied to.
1.6 The Government acknowledges too that the private law reforms will only work if good quality information and support is available both to couples/parents in a relationship and separated parents - including the minority of parents whose disputes end up in court. Consistent messages at each stage of the dispute resolution process will be important.
2 Private law reform – the wider context
2.1 The Government's intention to legislate to promote shared parenting is consistent with the wider private law reforms. These reforms start from the position that separated parents should resolve disputes out of court wherever possible, with support available to help them reach cooperative and child-focused agreements which promote the positive involvement of both parents in their children's lives. In essence, the Government wants to promote clearer alternatives to legal action so that fewer parents look to the courts as the final arbiter.
2.2 The Government is implementing a range of measures recommended by the Family Justice Review to achieve this. Online support will be the first stage, providing diagnosis and help for separating couples to understand their children's needs, the options for resolving disagreements, and signposting them to other appropriate services designed to help parents deal with the issues arising from their separation or divorce. We expect this service to be available to separating couples by the end of 2012.
2.3 Where parents have a dispute about children, finance or property following divorce or separation, and do not wish to come to court yet require further support, the Government wants to encourage attendance at a Mediation Information and Assessment Meeting (MIAM) as the next stage. The MIAM is a useful and impartial discussion that provides parents with information about how to settle their dispute, including through mediation. The mediator conducting the MIAM can also assess the most appropriate intervention to help parents - including the identification of cases that need to be fast-tracked to court (for example if there is evidence that a child or parent might be at risk of harm). The desired outcome of this process will be a ‘Parenting Agreement', serving as a tool to help parents set out the detailed arrangements for their child's care. While the Government recognises that it is parents who have to make choices about how best to resolve disputes, it believes that too many parents are drawn into the court process before they have given proper consideration to alternatives, such as mediation.
2.4 At present, a parent who wishes to initiate court proceedings is expected to first attend a MIAM. Currently, this is a strong expectation and the courts should expect to see evidence of attendance at the MIAM before allowing proceedings to start. We are aware, however, that this expectation is not operating effectively in all courts and cases are still reaching court without attendance at a MIAM and consideration of mediation as an alternative. In future, we will make a statutory change to ensure that evidence of attendance at the MIAM is a prerequisite for making an application to court - with appropriate safeguards built in for cases of genuine urgency and/or where there is a risk to the child or other family member.
2.5 A parent who is a prospective respondent, as opposed to a prospective applicant who wishes to start court proceedings, cannot be compelled to attend a MIAM and the Government recognises that this is an issue. We hope that these parents will come to see the MIAM as a beneficial way of dealing with their dispute and choose to attend on a voluntary basis, either separately or with the other parent. However, parents should be clear that where a case does proceed to court and they have not been prepared to attend a MIAM voluntarily, the court will, as now, have the power to direct that parent to do so.
2.6 The Government recognises that resolving cases away from court will not always be appropriate and there will always be intractable or complex cases, or those involving welfare concerns for a child or parent, that need court intervention. For cases that do go to court, the Government intends to replace the existing contact and residence orders with a ‘Child Arrangements Order'. The aim of this change is to focus attention clearly on the child's needs and move away from the perception of ‘winners and losers'.
3 Why legislation to promote shared parenting is needed
3.1 The decisions made by family courts about the upbringing of a child are based on the principle that the child's welfare is the paramount consideration. The benefit of ongoing involvement with both parents is already factored into these decisions, but it is not explicitly stated in the legislation that guides this process (the Children Act 1989). This has contributed to a perception that the law does not fully recognise the important role that both parents can play in a child's life.
3.2 The majority of parents who separate reach their own agreements about the care arrangements for their children, and many manage this in a co-operative way, taking account of the child's needs. When disputes about these arrangements arise, however, there is a risk that children's needs are overlooked. Whether courts are involved or not, in too many cases one parent is left in a position where it is very hard to retain a strong and influential relationship with his or her child. This can result in children losing contact completely with one parent (usually the father), often with a lasting impact on their lives. The Government firmly believes that parents who are able and willing to play a positive role in their child's care should have the opportunity to do so. The aim of the legislative amendment is also to reinforce the expectation at societal level that both parents are jointly responsible for their children's upbringing.
4 The Government’s legislative objectives
4.1 The Government's overarching objective in introducing this legislation is for children to benefit from the continued involvement of both their parents, where this is safe and in their best interests.
4.2 The proposed amendment to the Children Act 1989 will apply to private law disputes relating to the care of the child, including those about who the child lives with (currently known as "residence") and spends time with (currently known as "contact"). In such cases it will place an explicit requirement on courts to consider the benefits of a child having a continuing relationship with both parents alongside the other factors affecting their welfare. The child's welfare will remain the court's paramount consideration in making decisions. The amendment will also apply when the court is making decisions about the award or removal of parental responsibility.
4.3 The legislative change will send a clear signal to separated parents that courts will take account of the principle that both should continue to be actively involved in their children's lives. It will help to dispel the perception that there is an in-built legal bias towards fathers or mothers. The Government believes that this will encourage more separated parents to resolve their disputes out of court and agree care arrangements that fully involve both parents. An obstructive parent who seeks to prevent the other parent from spending time with their child, even when the involvement of both is in the child's best interests, should not expect the court system to legitimise this arrangement.
4.4 This legislative change is categorically not about equality in the time that a child spends with each parent after separation. There is no intention that equal time, or indeed any prescribed notion of an ‘appropriate' division of time, should be the starting point of the court's considerations. The quality of time a child spends with each parent, the need for stability in a child's life, and the sustainability of arrangements are the most important factors. Every family and every child's circumstances are different, and the courts will continue to make decisions on this basis.
4.5 The Government does, of course, recognise that for a child to have a good quality relationship with a parent requires something more than a token involvement by that parent. However, the focus of shared parenting decisions must be what will work best for the child and not how much time each parent should be allocated. A child's development needs also change over time and parents must be prepared to make and adapt care arrangements to meet those needs.
4.6 The Government also believes that greater transparency as to the importance that courts place on both parents remaining involved in a child's life will have a positive influence on wider aspects of the dispute resolution process. The legislation will become part of the consistent messaging that influences the starting point both for families undergoing separation, and the professionals who support them.
5 International evidence
5.1 The Family Justice Review Panel drew heavily on international evidence in reaching its recommendation against a legislative statement to reinforce the importance of a child having an ongoing relationship with both separated parents. The research on the impact of Australia's 2006 shared parenting legislation was particularly influential on the Panel's decision. The Government has considered the implications of this research very carefully. The drafting of the legislative clauses presented in this consultation takes into account feedback we have already received about the need to avoid unintended consequences. In particular, these clauses reflect the need to:
- maintain the principle that the welfare of the child is the court's paramount consideration
- avoid the implication of any right to equal time with a child, or indeed any prescription over ‘appropriate' levels of tiime
- minimise the scope for litigation seeking to define the nature of the relationship with a parent that is in the best interests of a child.
5.2 We are particularly keen to hear respondents' views on the effectiveness of the draft clauses in taking account of the lessons learned from the international evidence.
6 Enforcement - why stronger measures are needed
6.1 Court orders are made on the basis of careful consideration of all the facts available, and with the child's welfare as the court's paramount consideration. It is unacceptable for either parent to disregard or deliberately disobey such orders; where this happens, it is likely to be the child at the centre of the dispute who suffers most. The Government therefore believes that a tougher approach is needed in such cases, and it intends to explore the scope for additional enforcement sanctions for the courts.
6.2 The existing sanctions of fine or imprisonment for contempt of court, or an order to undertake unpaid work, are little used. In looking at wider options the Government is clear that it does not want punitive enforcement action to become the central focus of the case. However, in those cases where there is a wilful refusal to comply with an order of the court, short-term punitive action may be needed to achieve compliance and safeguard the longer-term interest of the child.
7 A new approach to enforcement
7.1 The Government has accepted the recommendation of the Family Justice Review that where a court order is breached within the first 12 months, the case should return to court swiftly - wherever possible before the judge who made the order - with the aim of resolving the issue at that hearing. We will work with the courts and the judiciary to put arrangements in place to return breach cases to court within a matter of weeks. This will send a clear signal that the decision of the court must be complied with. If there is a genuine difficulty or welfare issue which is preventing compliance with the court order, the court will consider how best to resolve this. Where it is clear that a parent is wilfully frustrating an order, the court will have the option of taking enforcement action against the parent concerned to secure what the child needs.
7.2 In terms of wider measures to help enforce orders making provision about contact, the Government is not persuaded that there should be a formal link between payment of maintenance and contact, and agreed with the conclusion of the Family Justice Review on this. Whilst such a change could risk these being traded by parents, one against the other, doubly disadvantaging the child, the Government believes that there should be a level playing field on enforcement so that denial of maintenance or refusal to facilitate contact both give rise to the same or very similar penalties. This can help to reinforce the message that children have a right both to maintenance and to spend time with a parent and that it is unacceptable for either parent to seek to deny these.
7.3 The Government is therefore considering extending enforcement powers to mirror those already agreed by Parliament for enforcing payment of child maintenance. These powers allow the withholding of passports and driving licences as well as the imposition of a curfew order requiring the parent concerned to remain at a specified address between specified hours. The Government is now seeking views on extending these sanctions to apply to court-ordered contact.
7.4 This will ensure that both refusal to pay maintenance and refusal to facilitate court-ordered contact give rise to the same, or very similar, penalties. We believe this will reinforce the message that the child is entitled to receive both these things and discourage parents from seeking to trade these as commodities. The role of both parents in a child's upbringing is important and each has a responsibility to meet the needs of the child. Parents must understand that enforcement action is available and will be used where necessary to secure maintenance or contact decided for the benefit of the child.
7.5 As with current sanctions, the Government envisages that courts would only take punitive action where this was proportionate to achieve compliance with an order and there would be safeguards where genuine difficulties have arisen. The Government is keen to hear views on the appropriateness of introducing additional enforcement measures and how best to achieve this.
8 Changing residence to ensure that the child’s needs are met
8.1 The courts can also use their existing order-making powers to make different care arrangements for the child. Where there is wilful obstruction of contact by a parent with whom a child lives, the courts have been prepared, in appropriate cases, to order a change of residence so that the child lives with the other parent. The parent who has obstructed contact may then have an order providing for the child to have contact with them instead.
8.2 While the Government and the courts are clear that such orders are exceptional, different from a punitive enforcement measure and can only be made where a change in living arrangements is consistent with the child's welfare, it is important for parents to understand that this is a real possibility. We therefore intend to amend the warning notices on court forms and change court information materials to emphasise to parents, from the outset of the court process, the potential consequences of breaching an order.
9 The draft clauses
9.1 Four different approaches are presented below for amending section 1 of the Children Act 1989 in order to meet the Government's objectives set out in paragraphs 4.1 to 4.6:
• Option 1 requires the court to work on the presumption that a child's welfare is likely to be furthered through safe involvement with both parents - unless the evidence shows this not to be safe or in the child's best interests
• Option 2 would require the courts to have regard to a principle that a child's welfare is likely to be furthered through involvement with both parents
• Option 3 has the effect of a presumption by providing that the court's starting point in making decisions about children's care is that a child's welfare is likely to be furthered through involvement with both parents
• Option 4 inserts a new subsection immediately after the welfare checklist, setting out an additional factor which the court would need to consider.
9.2 The circumstances in which the amendments would apply will be the same for each approach:
- when making decisions on contested section 8 orders (primarily related to who a child spends time with and lives with), as well as to the contested variation or discharge of such orders
- when making decisions about the award or removal of parental responsibility.
9.3 The application in respect of parental responsibility orders is achieved for all four approaches by the addition of the following subsection after subsection (4):
"(4A) The circumstances are that the court is considering whether to make an order under section 4(1)(c) or (2A) or 4ZA(1)(c) or (5) (parental responsibility of parent other than mother)."
You can view section 1 of the Children Act 1989
here to see how the four options set out below would fit into the legislation.
10 Option 1 – The ‘Presumption’ Approach
10.1 Draft clause
This option would insert the following text as a new subsection after section 1(2) of the Children Act 1989 and before the ‘welfare checklist':
"In the circumstances mentioned in subsection (4)(a) or (4A) the court is to presume, unless the contrary is shown, that the welfare of the child concerned will be furthered by involvement in the child's upbringing of each parent of the child who can be involved in a way not adverse to the child's safety"
10.2 Explanatory note
This is the Government's preferred option. The effect of this amendment is to require the court, in the circumstances set out in paragraph 9.2 above, to act on a presumption that a child benefits from the involvement of both parents in the child's upbringing, unless it can be shown that this is not the case.
10.3 The way in which this amendment is constructed means that the presumption only applies in respect of a parent who can be involved in a way that does not pose a risk to the child's safety. It therefore applies not just in cases where a parent poses no risk at all, but in cases where a parent can be involved in a way which poses no risk - such as indirect or supervised contact. Even where that is the case, and a parent can be involved in a way which does not pose any such risk, the presumption will be rebutted (or, in other words, the presumption will not in fact apply) if the court believes that the parent's involvement is not consistent with the child's welfare.
11 Option 2 – The ‘Principle’ Approach
11.1 Draft clause
This option would insert a new subsection into section 1 of the Children Act 1989, after existing subsection (2) and before the ‘welfare checklist', as follows:
"In the circumstances mentioned in subsection (4)(a) or (4A), the court shall have regard to the general principle that, irrespective of the amount of contact a child may have with any parent, the child's welfare is likely to be furthered by the fullest possible involvement of each parent of the child in the child's life".
11.2 Explanatory note
The effect of this amendment is to require the court to have regard, in the circumstances set out in paragraph 9.2 above, to the principle that a child benefits from a relationship with both parents. The wording of the amendment seeks to make clear that there is no intention to prescribe any particular level of time; this wording has been included in part to qualify the phrase "fullest possible involvement" by clarifying that the phrase does not suggest that any specific amount of time with each parent is required.
11.3 The draft clause above presents only one example of how the Children Act 1989 might be amended to reinforce the principle that a child benefits from the involvement of both parents. A similar effect could be achieved using other forms of wording. For example, the principle could refer to:
- enabling the child to have "the best relationship possible" with each parent rather than "involvement" or "fullest possible involvement"
- "furthered" rather than "is likely to be furthered"
- "in the context of whatever contact there may be between a child and any parent" rather than "irrespective of the amount of contact a child has with any parent"
- "without prejudging any issue as to the amount of time a child is to have with any parent" rather than "irrespective of the amount of time a child may have with any parent"
- "the child's upbringing" rather than "the child's life".
12 Option 3 - The ‘Starting Point’ Approach
12.1 Draft clauses
This option would insert a new subsection into section 1 of the Children Act 1989, after existing subsection (2) and before the ‘welfare checklist', as follows:
"In the circumstances mentioned in subsection (4)(a) or (4A), the court's starting point is to be that the welfare of the child concerned is likely to be furthered if each parent of the child is involved in the child's upbringing."
12.2 Explanatory note
This option makes clear that the court's starting point is to be that a child benefits from the involvement of both parents. In practice, it seems likely to have the same effect as creating a presumption that the involvement of both parents in the child's upbringing is likely to further the child's welfare.
12.3 The wording of this subsection could be strengthened by referring to parents being "as fully involved as possible" in the child's life. However, in that case it would be helpful to include additional text to make clear that this should not be interpreted as prescribing any particular level of time. For example the amendment could state that the principle applies "irrespective of the amount of contact a child may have with any parent".
12.4 The draft subsection above presents just one example of this possible approach. As discussed under Option 2, different forms of words could be used to achieve a similar effect. Other variations in wording might include:
- "the child's life" rather than "the child's upbringing"
- "will be furthered" rather than "is likely to be furthered".
13 Option 4 – The ‘Welfare Checklist’ Approach
13.1 Draft clause
This option would insert a new subsection immediately after section 1(3) - the welfare checklist - setting out an additional factor which the court would need to consider, as follows:
"In the circumstances mentioned in subsection (4)(a) a court shall also, and in the circumstances mentioned in subsection (4A) a court shall, have regard in particular to enabling the child concerned to have the best relationship possible with each parent of the child".
13.2 Explanatory note
This amendment has the effect of introducing an additional factor which courts must consider in making decisions about who a child spends time with and lives with. In such a case, the factor would essentially form part of the welfare checklist (which already applies in such cases). However, the factor would also be considered by the court in making decisions about the award or removal of parental responsibility (when the ‘welfare checklist' does not apply by way of a statutory requirement).
13.3 As for previous options, other forms of drafting could be used to achieve a similar effect. For example, the amendment could refer to the relationship with each parent being of the best quality possible "in the context of whatever contact there may be between the child and the parent". Such wording would make clear that there is no intention to prescribe the level of contact in quantitative terms.
14 How To Respond
14.1 Consultation responses can be completed online at
www.education.gov.uk/consultations by emailing
sharedparenting.consultation@education.gsi.gov.uk or by downloading a response form which should be completed and sent to:
CYPFD Team, Department for Education, Area 1C, Castle View House, East Lane, Runcorn, Cheshire, WA7 2GJ.
15 Additional Copies
15.1 Additional copies are available electronically and can be downloaded from the Department for Education e-consultation website at:
http://www.education.gov.uk/consultations
16 Plans for making results public
16.1 The results of the consultation and the Department's response will be published on the Department for Education e-consultation website no later than October 2012.
Shared parenting plans are 'worst Father's Day card ever'
Source: UK Telegraph - 8 Comments - 7:30AM BST 13 Jun 2012
Video:
In a consultation to be published today, ministers will propose different ways to establish the notion of “shared parenting” after separation in law, but the founder of Fathers for Justice says that this is the "worst Father's Day card ever".
Under new Government plans announced today, new penalties will be introduced with changes to the law which will establish a legal right for children to have a “meaningful relationship” with both parents after a marriage breakdown.
In a consultation to be published today, ministers will propose different ways to establish the notion of “shared parenting” after separation in law. Judges will be expected, where possible, to ensure that fathers are given time with their sons and daughters.
Mothers who defy court orders requiring them to give such access will face a range of penalties including the removal of passports or driving licences and the imposition of home curfews.
But Matt O'Connor, founder of Fathers for Justice, described the plans as the "
worst Father's Day card ever for dads", because he said that the Government "
simply could not strengthen something when the court of family law is absolutely rotten."
He added: "
In three or four years time we will look back at this announcement and actually see that the epidemic of mass fatherless-ness has continued regardless of the proposals put forward by the Government."
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