Legal Update: ‘Parental involvement' proposal

The government has proposed the introduction of wide-ranging reforms to the family justice system, as set out in the Children and Families Bill, published last month. One of the proposed changes is the introduction of a “parental involvement” presumption which will be applied, except in some cases, when a court determines a child’s care arrangements following a relationship breakdown.

Children’s organisations have expressed concern at this proposed change. Where parents separate, provided it is safe, children are indeed more likely to thrive if they have a good quality relationship with both parents. However, there are significant problems in enshrining this in legislation.

How do courts decide care arrangements?
Currently, in deciding any question of a child’s upbringing, including their living arrangements following a relationship breakdown, the child’s welfare must be the court’s paramount consideration. This is commonly referred to as the “welfare paramountcy” principle, and is set out in Section 1 of the Children Act 1989. This section also includes a list of factors that the court shall have regard to in determining what is in a child’s best interests.

This approach ensures that decision making focuses on determining the needs and interests of each individual child, rather than on the expectations of parents, and promotes an outcome that is in the best interests of each child concerned. Recent research carried out at Sussex Law School, based on a sample of 398 young adults who experienced parental separation in childhood, found that contact works best when it is tailored to the needs, wishes and circumstances of each individual child.

How will the proposals change this approach?
The government proposes to change this approach by adding a presumption that, in making determinations as to a child’s upbringing, including following a relationship breakdown, the court shall presume, unless the contrary is shown, that involvement of the child’s parents in their life will further the child’s welfare. It is proposed that this presumption will only apply if the relevant parent can be involved in a child’s life in a way that does not put the child at risk of suffering harm.

The government’s rationale for introducing the presumption is to remove bias from the family justice system against non-resident parents. However, research has shown no evidence of bias in the system. In 2010, only 0.3 per cent of 95,460 applications for contact were refused. Such refusals only occur in cases that involve very serious welfare concerns.

Problems with the proposal
Children benefit from the court’s ability to take into account and give due weight to a range of factors in determining what is in their best interests. By building a presumption into the welfare principle, the government’s proposal will lead to one factor – ensuring involvement of both parents in a child’s care arrangements – taking precedence over other factors which are important in particular cases.

This would lead to decision making that is less flexible and tailored to the circumstances of each individual child.

For the majority of cases that are decided by parents coming to their own arrangements, there is a real risk that the proposed presumption, regardless of how carefully it is drafted, will be misunderstood to mean a “right” to shared parenting or equal time, which may cause parents to focus on their own expectations and perceived new “rights” rather than coming to an arrangement that is in the best interests of the child.

This was the case following the Australian law reforms of 2006, which in practice ended up putting too many children at risk of harm by prioritising parental arrangements over safety and welfare. It is a problem likely to be compounded by changes to legal aid this year, which will result in lack of access to independent legal advice and assistance for parents in these cases.