For the first time the right of both divorced fathers and mothers to see their children is to be protected by law as part of the changes to family justice. However this change does come alongside warnings from both the government’s independent review and lawyers that it would “clog the courts.”
The government have released a consultation paper in which they propose making changes to the law to explicitly recognise the importance of children being able to have contact with both parents after divorce.
The government have released figures which show that after a divorce, 90% of children live with mainly with one parent with only 12% of these children living with their father. The government have proposed four potential options, including making it the legal duty of family courts to ensure that children have a relationship with both parents should a marriage break down for the reason that a “child’s welfare is likely to be furthered.”
Government minister have made repeated references to a study carried out in 2008 which claimed that children with “highly-involved dads develop better friendships, more empathy and higher levels of educational achievement and self-esteem. They are also less likely to become involved with crime or substance abuse.”
Earlier this year economist David Norgrove advised the government against the proposed changes, warning of a similar situation in Australia when the country introduced “shared parenting” rights. A series of legal claims and counter-claims led to a huge backlog in child custody cases.
However ministers say that their proposed changes will not result in the courts having to apportion “equal time” or “defining the nature” of parental relationship” which have been cited as reasons why the law was unsuccessful in Australia.
Leading lawyers have warned that: “once in legislation you could end up with more cases clogging up the courts.” Matt Bryant of Resolution which represents 6000 family lawyers said: “Amending the law will allow people to appeal. It’s really not needed as judges already take into account these factors.
“The key will be to ensure that a child’s welfare comes first and that by enshrining something in legislation – as has happened in other countries – the government run the risk of placing the demands of parents over those of the children.”
The NSPCC and other children’s charities feel the same way. The NSPCC said: “The importance of children having a meaningful relationship with both parents is already fully recognised by the judiciary and all those working within the family justice system.
“If the government does take this legislation forwards the primary focus must remain on the paramountcy principle (putting the child’s best interests first) as stated in the Children Act 1989.
“They must be sure that it will not create unintended consequences such as more parents fighting battles in the courts or the focus being on the rights of the parents and not the child.”
Deputy prime minister Nick Clegg said: “Both parents have a responsibility and a role to play in their children’s upbringing and we want to make sure that, when parents separate, the law recognises that. Children should have the benefit of contact with both of their parents through an ongoing relationship with them.
“This is why we are publishing proposals today setting out that, where it is safe and in the child’s best interest, the law is clear that both parents share responsibility in their upbringing.”