Family Law

By Hugh Logue, Newswatch Editor and Online Publisher

In its official response to the Family Justice Review today (download below), the government has announced plans to introduce legislation ensuring children maintain an ongoing relationship with both parents following divorce and separation.

The decision is controversial because the Family Justice Review panel, chaired by David Norgrove, warned the government against introducing such formal measures. The panel's evidence was based on reviews of similar legislation introduced in Australia in 2006 that required judicial officers to have regard to 'the benefit to the child of having a meaningful relationship' with both parents.

A review of the Australian legislation found that there was an increase risk to children's safety and that parental involvement with children was often emphasised 'at the expense of protection for family members'. Australian legal practitioners also reported that they had found the legislation difficult to apply due to ongoing uncertainty and debate about the meaning of the term 'meaningful relationship'.

Responding last week to reports of the government's plans, Mr Norgrove said: "The family justice review panel thoroughly considered the issue of shared parenting and concluded the law should not be changed.

"If the government has decided to legislate, I regret that and it will be vital to find words that avoid the difficulties encountered in Australia."

Jane Craig Head of Family Law at Manches law firm commented: "It is disappointing that the government has disregarded Norgrove's clear recommendation that no new law should be introduced to give parents the right to substantially shared or equal time with their children when they separate or divorce.

"The courts already recognise the importance for children of having a continuing relationship with both parents. Providing a formal legal right to shared parenting time is unnecessary and fraught with difficulty - as Norgrove recognised. The experience in Australia is that it leads to far more litigation between parents. Parents should be given more help in reaching negotiated agreements about arrangements for their children and where they can't, the court should continue to make orders which prioritise the best interests of children, rather than the competing rights of their parents."

However, the announcement has been welcomed by parents' rights organisations who have campaigned for such legislation for years. Ken Sanderson, CEO of Families Need Fathers, commented: "A move to introduce legislation enshrining a child's rights to an ongoing meaningful relationship with both parents would be a victory for children. For too long, we have seen children of many separating couples across the country lose out on the emotional and social benefits of a loving relationship with both parents following separation and divorce, and we are delighted that the government intends to address this situation.

"This is not a question of fathers' or mothers' rights; it is about protecting the rights of children to have two loving parents fully involved in their lives wherever possible, to the benefit of the children, their families, and wider society."

The government also announced that it intends to implement the panel's recommendation to reform public law children cases by introducing a new six month time limit in care cases so delays are significantly reduced. The reduction in time could in part be delivered by implementing the panel's proposal for family courts to place less reliance on 'unnecessary' expert witnesses and refocus on determining whether the child should go into care.

In addition Cafcass will be brought within the Ministry of Justice where it would work jointly with the courts service, legal aid and other partner agencies within a single service.

Justice Secretary Kenneth Clarke said: "The reform of family justice and child protection is a critical priority for Government. Our reforms are ambitious and system-wide and particularly tackle the crucial problem of delay.

"More use of mediation, more effective court processes and more efficient provision of advice will help to create a family justice system which can better resolve these difficult emotional problems in the best interests of children and families."