Tuesday, 13 November 2012

Proposed Shared Parenting Legislation - Flaws

There was an interesting debate on the Voice of Russia today, where representatives from Families Need Fathers, Fathers 4 Justice (F4J), a solicitor and a therapist discussed the government's proposed legislative change. 

The consensus on the show was that the proposed new legislative wording wouldn't change anything for children or parents. We've blogged already on why this is the case in our article 'The Shared Parenting Campaign' and we've explained why legal reform is needed in our article 'Judicial Opposition to Shared Parenting - Who sets social policy?'.

The radio programme also raised organisations' concerns over other aspects of wording in the proposed legislation. Ken Sanderson, CEO of FNF will be raising these concerns in a Parliamentary consultation group next week, and his, and F4J's concerns also specifically relate to the proposed paragraph 6(b)[all proposed amendments are listed below for context]:
“(2A) A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare....
...(6) In subsection (2A) “parent” means parent of the child concerned; and, for the purposes of that subsection, a parent of the child concerned -
(a) is within this paragraph if that parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm; and
6(b) is to be treated as being within paragraph (a) unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm whatever the form of the involvement."
The word some is unnecessary. There is evidence, or there is no evidence. The matter is binary, and the word should be removed.

The main area of contention, and again, it is one upon which F4J and FNF agree, and I would add my own support to their position, is on the use of the word suggest. Should a child lose a relationship with a parent upon a suggestion?

The wording also introduces uni-polarity to the balancing exercise in consideration of evidence of risk. I'll explain... what happens if there is also 'evidence before the court in the particular proceedings to suggest that involvement of that parent poses no risk to the child.' The proposed wording arguably contaminates the balancing exercise (the judge's ability to weigh evidence when reaching a decision about arrangements for children) by stating that a parent can be involved in a child's life only where there is no suggestion against.

One must also remember that in the family courts, matters are adjudicated on a 'balance of probability' rather than the stronger measure of 'beyond all reasonable doubt'. Ken Sanderson raised the point, on the radio show, that where risk is suspected, the matter should be handled within public law, and treated as seriously. Where the state proposes stripping a child and parent of their rights to family life, there must be a robust investigation, the court must weigh all evidence, and evidence for the removal of a parent should be compelling.

Is there a reason why this paragraph is actually necessary? The Welfare Checklist is surely adequate, and the presumption included in paragraph 2(a) is merely that... a presumption, and affords the necessary protections without the need for further, poorly worded emphasis.