Guest blog: how we helped protect the welfare of children in family courts

Posted by Kristen Anderson / Thursday 06 March 2014 / Children's rights

We’ve made sure that the welfare of the child remains the paramount consideration when decisions are made about their care after their parents break up.

I want to share with you information about our campaign to ensure that this important protection for children stays in place and why it’s so important.

The campaign, which involved a consortium of children's charities (including Action for Children), family law practitioners and academics, centered on a clause in the Children and Families Bill (Clause 11). The clause would bring a presumption into the family law courts which could undermine child rights by taking the focus off the child’s welfare.

Clause 11 states that the courts must: ‘presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare when making decisions about a child’s care arrangements.’

Currently, when parents break up, decisions about where the child lives and the amount of contact they will have with parents is decided according to the welfare of the child, and this must be the court’s primary concern. Courts are required to decide by looking at a wide range of factors, but they must decide on an arrangement that is in the child’s best interests.

We joined a consortium of other organisations who feared that introducing a presumption of ‘parental involvement’ into the law could undermine or water down the principle that the child’s welfare should be the paramount consideration.

Of particular concern were cases decided out of court, in ‘the shadow of the law’, which account for 90% of access and residency cases. In these cases, we feared that a ‘parental involvement’ presumption  could lead to separating parents assuming they are legally bound to equally share access to their children, and this could lead to decisions being made that are not in the best interests of the child.

For the last year, we’ve been campaigning hard and we’re proud to say that an amendment to clause 11 has now been adopted by the Government.

The amendment defines ‘parental involvement’ as ‘involvement of some kind, either direct or indirect, but not any particular division of a child’s time.’ This  clarifies that the ‘parental involvement’ presumption is not about promoting the equal division of a child's time between separated parents and is not about undermining the fundamental principle that the welfare of the child is the court's paramount consideration in determining a child's care arrangements following a relationship breakdown.

This amendment will, we hope, make it clear to separating parents that neither mothers nor fathers are entitled to a legally binding presumption of shared contact. Decision-making instead should rightly focus on determining the needs and best interests of each individual child, rather than focusing on the expectations of parents.

In the House of Lords Committee debate about the amendment, Baroness Butler-Sloss (a highly influential Peer with many years experience in family law) said:

"The groups of parents whom I worry about in relation to Clause 11 are those who try to settle the arrangements for the children without going to court.  In the absence of lawyers to advise either side, the stronger, more dominant parent may insist on an arrangement based on equality, or at least on disproportion which is not appropriate for the welfare of the children.  We know from the Norgrove report of the fine line between children at risk in the private law sector and those seriously at risk in public law.  The parents of some of those children at risk may well make their decisions outside court.  I want the weaker parent to have something in statute to hold on to if browbeaten."

The amendment, which was introduced in the House of Lords, was agreed to in the House of Commons last month. We’re now just waiting for the Bill to receive Royal assent and become law. In the meantime, we’re proud to have won this important campaign for children and their rights.

Kirsten is Legal Research and Policy Manager at Coram Children’s Legal Centre; a national charity that promotes the rights of children by providing free legal information, advice and representation to children, young people, their families, carers and professionals, as well as research, policy and international consultancy work on child law and children’s rights.

Join the conversation.

Find out how you can become a campaigner, stay up to date with our latest tweets and join in the discussion on our blog.