Family Law

Read David Hodson's opinion on the announcement

The Children's Minister, Edward Timpson, has announced the Government's response to a consultation on amending section 1 of the Children Act 1989 and stated its preferred option is to introduce a ‘shared parenting presumption'. 

The public consultation on the proposed shared parenting provisions closed on 5 September 2012. It  invited views on the Government's plans to introduce legislation to 'send a clear signal' on the importance shared parenting and on options for strengthening the enforcement measures available to courts to deal with breaches of court-ordered arrangements for contact.

The Government would like to amend the Children Act 1989 to require 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".

The other options put forward in consultation were:

• requiring the courts to have regard to a principle that a child's welfare is likely to be furthered through involvement with both parents;
• 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, and;
• inserting a new sub-section immediately after the welfare checklist, setting an additional factor which the court would need to consider.

The announcement was made in a letter (Pdf) from Mr Timpson to the House of Commons Justice Select Committee, in which he wrote: "I know from my own experience practising as a family lawyer, that many separating couples feel the system is far too adversarial, with courts seen as creating 'winners' and 'losers'. It is vital that both mothers and fathers feel confident that the court will consider fully the benefits of their involvement. We believe that the absence of an explicit reference to this consideration in the Children Act 1989 has contributed to a perception that the law does not fully recognise the important role that both parents can play in a child's life. We remain convinced that a change to the law is needed to help restore confidence in the family court system.

"We have concluded that this is best achieved by introducing a presumption in law that a child's welfare is furthered by the involvement of both parents- where that is safe and in the child's best interests. We have taken the decision to proceed with this approach after a detailed analysis of the consultation responses. Strong views were expressed from both sides of the debate, but over half of the respondents supported the Government's view that a presumption is the right approach.

"This proposed legislative change does not give or imply the creation of any rights to equal time, or that there is any prescribed notion of how much time is appropriate. Courts will continue to make decisions based on children's best interests."

The proposals are likely to make little practical difference to what currently happens in family courts. A statement from the Law Society said: "The welfare of children must always come before the rights of parents and no legislation should create or point to a perception that there is an assumed parental right to substantially shared or equal time for both parents.

"While the government's intention to promote co-operative parenting is welcomed, legislation to promote shared parenting is not needed. Current legislation adequately provides the right framework for securing a child's welfare."