A presumption that ‘involvement’ of both parents is best: deciphering law’s messages [2013] CFLQ 270

Keywords: Child welfare - shared parenting - mothers - fathers - presumption - symbolic reform

The Children and Families Bill 2013 will amend the Children Act 1989 to introduce a presumption that it is in children's best interests that both parents remain involved in their lives after separation or divorce. This article sets out to examine the rationale for this change and to evaluate its likely impact. The reason for enacting the legislation is couched by politicians in terms of children's best interests. The new law is also intended to deflect allegations of bias made by fathers' rights groups and to ensure that parents do not take their battles to court. This article argues that the legislation is not primarily intended to alter the way courts make their decisions and that it is unlikely to change the behaviour of parents. It is also unlikely to placate fathers' rights groups. It may, together with the withdrawal of legal aid, reduce the volume of litigation. But rather than being instrumental, the presumption is an attempt to use the expressive power of the law to reinforce a norm; it has a largely symbolic function. It is part of a ‘moral crusade' to uphold the importance of particular notions of the father and his role in the family. It is also meant to restore confidence in the much-criticised family justice system. The material effect that it may have is to change the balance of power in out-of-court settlements and in this way may prove damaging for mothers and children.

The full version of this article appears in issue 3 of 2013 of Child and Family Law Quarterly.