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Hayley Trim's Analysis: Read all about it (or not)

Date:2 NOV 2011

Hayley Trim, Family Law PSL"Fathers denied a right to see children" - The Telegraph. "Fathers lose bid for equal custody rights after review of family law" - The Daily Mail. Serious stuff in today's headlines.

So what's the story? The Family Justice Review due out tomorrow has reportedly decided against a presumption of shared care (as expected) and of incorporating a statutory statement that children should have a meaningful relationship with both parents.

Is it a denial of rights? Well obviously we haven't seen the full report yet, but it seems that this snippet does not change the position as it currently stands. That is, under the Children Act 1989 the welfare of the child is paramount. The court, when considering what arrangements to make for a child whose parents cannot agree, starts from the position that a continuing relationship with both parents is in the interests of the child unless such a continuing relationship puts the child at risk of harm (see Munby LJ's summary of the law in Re C (Direct Contact: Suspension) [2011] 2 FLR 912. The "rights" of the parents are a factor to be weighed since everyone has a right to family life under the European Convention, but the overarching principle is the child's welfare. I was always taught that contact was the right of the child. In practice, there is a presumption that a child will spend significant time with both parents - the attitude of the judges in my experience is not "why should there be this much time with the father?" but "why should the children not spend this much time with the father?"

Perhaps this is a missed opportunity to make explicit in statute what is already the law, but it does not justify the provocative headlines which go to inform the public view. The system is by no means perfect, but unbalanced reporting is not going to improve it. And it makes me angry.

What usually frustrates a continuing relationship is not judicial will or the wording of the legislation but the behaviour of one or both of the adults involved. From time to time it is simply impossible to balance the enforcement of a contact order with a child's welfare - you only need to look at the tragic case of Re S (Transfer of Residence) [2011] 1 FLR 1789 where the last resort of transferring residence to the father was so distressing for the child that the father conceded he should live with the mother.

Of course sometimes it is the failure of the courts to act early enough that causes parties to become more and more entrenched and the child (in the recent words of Hedley J in ML & AR v RW & SW [2011] EWHC 2455 (Fam)) to be "sucked into an uncontrolled vortex of undisguised hostility and rancour." But it is an incredibly difficult balancing act to get the timing and the method of enforcement right, and it is hard to see how a statutory declaration would improve things in practice. Statutes are applied by judges who are human beings and who do not have the benefit of advanced 20/20 hindsight. If only they did...

I am looking forward to reading the full report tomorrow and I am particularly interested to see whether the review committee carries through their interim suggestion of scrapping the concepts of contact and residence in situations where both parents have parental responsibility so that orders would relate instead to how time is spent. The idea needed thinking through, but had potential to be a positive development.

Hayley Trim is a Family Law PSL at Jordan Publishing and was formerly a family solicitor practising in London.

She works on the Family Law online major works providing updating notes on cases and other relevant developments as they happen for The Family Court Practice, Children Law and Practice and Matrimonial Property and Finance online.

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