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Government launches consultation on parental rights after divorce

Consultation outlines four options for achieving shared parenting

The Government has launched a consultation offering four different approaches for amending section 1 of the Children Act 1989.

The Government seeks to enshrine shared parenting in law. Ministers believe this will encourage more separated parents to resolve disputes out of court and agree care arrangements that fully involve them both.

The four options outlined in the consultation are:

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.

This is the Government's preferred option.

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 sub-section immediately after the welfare checklist, setting an additional factor which the court would need to consider.

Ministers believe that the current legislation – setting out the principle that a child's welfare is always paramount in any family court decision about their future – creates a perception that the law does not fully recognise both parents' roles and there is an inbuilt bias towards one or other parent.

The consultation also asks how to toughen sanctions to enforce breaches of court orders regarding care arrangements – including, where there is a wilful refusal to comply with the court, short-term punitive action to protect the longer-term interests of the child.

The consultation, which closes on 5 September 2012, can be read or downloaded here.

Alison Hawes, a Partner at Irwin Mitchell, said courts and family law specialists already operate on the basis of the proposed presumption: 

"It is already a widely held view in the Family Courts that children benefit from having good relationships with both parents when a family separates.  Child psycholgical studies back that up, and courts do their best to make sure that children see and spend time with both parents when it is safe for them to do so.  The exact arrangements will be unique to each family and depend on the children's' ages, geography and other factors.

"In the vast majority of cases – experts have quoted statistics such as 99% on one study – court orders made provide for children to have contact with both parents. 

"There is a risk that these rather confused proposals will in fact make things worse for children rather than better.  There is a real possibility that changing the law will lead to more litigation, rather than less and that in turn will cause delay and expense for families that can ill afford it."

In contrast, Families Need Fathers welcomed the release of the Government's consultation. It said that the recognition that the full involvement of both parents is a crucial component of child welfare, and not a challenge to it, is a simple, yet hugely significant, development in family law.

Ken Sanderson, CEO of Families Need Fathers, commented:

"By making explicit the importance of both parents being fully involved in their child's upbringing following divorce or separation, the Government will be making a crucial and long overdue amendment to the law. It will support and strengthen the overwhelming social change over the past 40 years whereby both parents are expected to contribute fully to their child's wellbeing, both emotionally and materially."