Family Law

The government consultation of 14 June 2012 has proposed an amendment to the Children Act 1989 by adding some form of presumption or principle or starting point or addition to the welfare checklist. The intention would be to emphasise the importance of the involvement of both parents in the lives of the child. This intention is worthy. The execution seems pointless. In particular, because of its desperate anxiety to avoid anything remotely close to the Australian experience of children law reform a few years ago, the proposals seem unnecessarily anodyne. It must be doubted if they will have any impact or improvement in practice. If this is the case, it must be highly regrettable.

In its headlines, the government says that there is a risk at a time of parental separation that the children's needs are overlooked and in too many cases one parent finds it hard to retain a strong and influential relationship with the child. The stated aim of the proposed legislative amendment is to ensure this involvement happens in court cases and reinforce the expectation generally that both parents are jointly responsible for their children's upbringing.

The short history is that in 2009, the influential Centre for Social Justice in its groundbreaking reform report "Every Family Matters" recommended change to statute law to include provision of a principle, not a presumption, that both parents having a "significant involvement" in the life of the child was in the best interests of the child, subject to safety aspects of course. In 2010 the UK government set up a Family Justice Review (FJR) to consider some areas of family law reform. In their interim report in 2011, they recommended statutory reference to the child having a "meaningful relationship" with both parents, a difference of sorts from significant involvement but no major change. However after the extensive responses to the interim report and especially after feedback from some in Australia, the FJR got cold feet and in their final report recommended no change.

The government has disagreed. There have certainly been some calls for presumptions or starting points of equal time provisions but almost everyone in England was adamant that we would not go down the fraught route of the terminology of the Australian legislation with its perceived artificial expectations within the public arena of some sort of time equality starting point. England already makes "shared residence orders".

In April 2012, England was much blessed by having not one but two of Australia's finest speaking to us on this subject. Chief Justice Diana Bryant, Australia's most senior family court judge, spoke at an international lecture at a London law firm and the following day Professor Patrick Parkinson, Australia's leading family law academic, spoke at the Palace of Westminster. Both covered the lessons to be learned from the Australian experience in children law reform

The Australian changes in 2006 were that in determining the best interests of the child it was necessary to look at two primary considerations, the first being "the benefit to the child of having a meaningful relationship with both of the child's parents", similar to the FJR interim proposals. One practical expression of a meaningful relationship and whether it was appropriate to make an order of equal shared parental responsibilities, judges had to consider making an order for equal time or "substantial and significant time" if in the best interests of the child and reasonably practicable. So time became inextricably linked with the meaningful relationship and the shared parental responsibilities. Perhaps inevitably public expectation as a consequence of the legislative reforms was not on the meaningful relationship or the substantial and significant time. It zoned in immediately onto equal time.

This caused major problems. Lay parties, fathers of course but also mothers, expected to have to work out some complicated arrangement which was close to equality. Mediators were putting in place equal time. Lawyers struggled with client expectations. The judges grappled with the legislation, requiring some higher court decisions to right the balance, although they have still not fully overturned the initial equal time expectations from the public of the legislation.

The UK government proposes a "presumption that a child's welfare is likely to be furthered through safe involvement with both parents unless the evidence shows this is not to be safe or in the child's best interests". On any basis it is cumbersome even tautologous wording. A safe involvement unless shown not to be safe?!  The child's best interests always override anyway.

The problem perceived by many practising lawyers is that the proposed changes make no difference in practice. Indeed, reference to "safe" involvement is much weaker than either significant involvement or meaningful relationship, the other phrases which had been recommended. Of course any parental involvement has to be in the context of safety. Referring to the involvement as safe should be taken as presumed but thereby loses the opportunity of a more appropriate, dynamic and active adjective. Apparently government ministers are anxious that the welfare principle presently in the legislation does not explicitly state in law the benefit of ongoing involvement with both parents, although it is invariably factored into court decisions. The wording proposed by the government goes nowhere close to the intention that they rightly express. Much better wording with some actual likelihood of changing the present situation might well have more support

The consultation closes in early September. Given that there was no major lobbying nor any strong mandate for this proposed reform and given that it makes very little difference in practice, it will probably go through!  The regret is that whereas there are some family law reforms which are desperately needed, and have little prospect of any Parliamentary time, this will go forward to satisfy ministerial concerns without any major impact in practice. But at least it is not equal time, which we do not want transported from Australia.

David Hodson is a Partner at The International Family Law Group LLP. He acts in complex family law cases, often with an international element.  

He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and chair of the Family Law Review Group of the Centre for Social Justice.

David is the author of a new major reference work, The International Family Law Practice as well as A Practical Guide to International Family Law (Jordan Publishing, 2008). He can be contacted on dh@davidhodson.com.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.