Monday, 2 September 2013

The Children and Families Bill, Parental Involvement and Timescales

Remember the hoo-hah about a change to the law, and there being a presumption of shared parenting in law? Remember the C4 Dispatches programme and the broo-hah following that?  A poll by the TV programme found that 84% of respondents believed that the family justice system favours mothers over fathers, and 88% believed that the law needs updating.

Such matters were due to be addressed in the Children and Families Bill.

Where stands the Bill now, and what does it actually say?

Where stands the Bill now?
Slow progress has been made (at least in terms of timescale, if not of content, where the word 'little' seems more apt than 'slow'), with the next stage being the Committee Stage in the House of Lords. This meeting is set for 9th October 2013. For those with a Tolkeinesque vocabulary, the progress of legislative reform is positively entish.

What next? Then comes the reporting and third reading stages, and we enter the world of ping/pong (this is actually an official term, since the Bill and amendments are subsequently batted backwards and forwards between our two Houses of Parliament).

If it passes this stage, then we see Royal Assent granted BUT, that does not mean that the new legislation immediately comes into force. Consider that the parts of the Children and Adoption Act 2006 concerning contact enforcement didn't come into force until December 2008.

So it's safe to say my, and others' guides, don't need updating yet.

What does the Bill actually say?
You may remember that campaigners' wishes varied. Some called for:
  • a presumption of shared parenting; others
  • a minimum amount of contact; others
  • a presumption of equal parenting time; others
  • wished no change; while others
  • thought all men were dangerous, and should have to prove they were safe before any contact was granted.
Most campaigners agreed that safeguards needed to be in place to ensure face to face parenting was restricted where there were proven risks to the child. Some believed that the presumption of shared parenting should only be removed where the similar circumstances applied as would require a child being taken into local authority care... where the child was at risk of significant harm, if placed in a shared care arrangement.

My view was a rebuttal presumption should exist concerning shared parenting, and that research showed that shared parenting was routinely in a child's best interests. The 'rebuttal' part allowing a challenge to this, in individual cases, where there was evidence of risk to the child from such an arrangement. Further, I believed both parents should have the opportunity for midweek as well as weekend parenting time, to facilitate involvement in schooling and extra-curricular activities (proven to have positive benefits for child development). If you like, I wanted a definition of 'involvement'.

So back to the sub-heading. What does the bill actually say? Which lobbying group was successful? I'd argue, those who don't want any change at all (with a perceptual exception).

The changes in the Bill which currently relate to presumptions are set out below. Gone is the word 'meaningful' that others argued for. There is no definition of what 'involvement' actually means. I once wrote that without, at the very least, the word meaningful, the word involvement was meaningless.
11 Welfare of the child: parental involvement

(1) Section 1 of the Children Act 1989 (welfare of the child) is amended as follows.

(2) 15After subsection (2) insert—

(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.

(3) 20After subsection (5) insert—

“(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

(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

(7) The circumstances referred to are that the court is considering whether
to make an order under section 4(1)(c) or (2A) or 4ZA(1)(c) or (5)
(parental responsibility of parent other than mother).”
So the current proposal, as it stands, is that there will be a presumption that parents have an involvement in their children's lives (with the usual safeguards), but without any definition, or emphasis with the word meaningful? At the lower end of the scale, one would imagine involvement would be having been present at the point of conception (whether in person, or via test tube). At the upper end of the scale, what most people understand to be 'shared care', meaning both parents are fully involved in schooling, leisure time, overnights, and all aspects of the children's routine, day in, day out, school week and weekend care as well as having holiday time with the children. This does get granted in some courts, but there continues to be inconsistency from judge to judge and region to region in very similar cases. Well worded legislation cuts down on such inconsistency.

A red herring in this debate was that the presumption would grant parents the right to inclusion in important decisions which affect the children. As any 1st year student in law should know, the existing legal status of parental responsibility already grants that right and responsibility (albeit ensuring that right is upheld is an entirely different matter).

So does a presumption of involvement actually change anything? No. Everything rests on the decision of the individual judge and their selective and personal definition of what involvement means, whether a card four times a year, alternate weekend staying contact, or a mathematical division of the child's time. All could be considered 'involvement' due to such loose legislative wording.

Another part of the bill relates to a change in legal terminology for post separation child arrangements. We see the unpleasant and controversial term 'contact' (and residence) order replaced with 'child arrangement' order.

Aside from the heading on the top of a court order, does this actually change anything? Not really, and questions remain unanswered. A few examples for you:
  1. Currently, a parent with contact can make an application for contact enforcement, and the assisting or punative measures set out in the Children and Adoption Act 2006. These measures only apply to contact, and a parent with shared residence cannot apply for 'contact' to be enforced (as they share residence rather than having a right to contact. A fatuous state of affairs, which the new bill doesn't appear to address (unless I've missed it?). With the contact orders disappearing, it would seem that the Children and Adoption Act 2006 will become defunct (sections 11A to 11P of the Children Act 1989 as amended by the Children and Adoption Act 2006), as there is no amendment of wording related to enforcement of orders (whether contact, residence or child arrangement);
  2. Under existing legislation, a parent with residence can take the children abroad without the non-resident (contact) parent's consent for up to a month (while the non-resident parent may not). Will either, or neither parent have this right under a child arrangement order (section 13(1)b of the Children Act 1989)? Who knows, as the Bill misses this point.
What concerns me, is that unless I'm missing something, the Children and Families Bill appears to be a sloppy piece of legislation.

The scope of sections 11A to 11P of the Children Act 1989 should ALWAYS have covered shared residence. A parent with shared residence should not be limited to seeking the committal of the parent in breach, which the court is rarely if ever likely to do.

I'm less concerned about whether a change in legal definition impacts on international instruments such as the 1980 Hague Convention on the Civil Aspects of International Child Abduction and Brussels II Revised Regulations, as these make reference to custody and access (replaced by the terms residence and contact). It might however be wise to ensure that the new bill clearly states that the terms custody and access, and residence and contact are encompassed by child arrangement orders, granting equal legal status to both parents (for the avoidance of doubt!). 

The parts of the Bill related to the change in legal status appear limited to:
12 Child arrangements orders

(1) 35Section 8(1) of the Children Act 1989 is amended as follows.

(2) Omit the definitions of “contact order” and “residence order”.

(3) After “In this Act—” insert—

““child arrangements order” means an order regulating
arrangements relating to any of the following—

40with whom a child is to live, spend time or otherwise
have contact, and

when a child is to live, spend time or otherwise have
contact with any person;”.
While a single legal status for both parents appears welcome, I imagine we will see the term 'primary carer' used in place of resident parent, as a stick to beat the other parent with. Will parents fight over which is the resident or contact parent? No (yay). Will they soon be back to court when the 'primary carer' (call them what you will... majority carer, parent with care and all those other terms already substituted for resident parent) wishes to limit time with the children as a means of torture, or due to a belief that they are the 'expert' parent, or a whole host of other reasons? We suspect yes (oh!). If the granting of parental responsibility to both parents ensured that both were involved in selection of schools, we'd be less pessimistic.

The Children Act replaced the concepts of custody and access with the terms residence and contact. This didn't reduce separation conflict. The battleground in court will continue to see the parents armed with exaggerated or entirely false allegations. Those who believe that the Bill's weak presumption (or mediation) are a cure to the belief in bias in the courts, or parental warfare are naive. A carrot, without the stick is of little use and especially when dealing with the human nastiness which exists when a couple's relationship implodes.

Unless there are some sanctions for perjury, and you make it so court outcomes are more certain before parties enter, the warfare will continue. There were grounds for more equal arrangements, since the quantum of parenting time between the sexes has balanced since the inception of the Children Act, and a presumption of shared parenting reflects the normal arrangements for intact families. More so, child welfare research confirms shared parenting to be in children's best interests.

What a waste of an opportunity.