Legal Update: In a Nutshell - Parental involvement law comes into effect

Coram Children's Legal Centre
Tuesday, October 28, 2014

Courts must presume that, unless otherwise shown, involvement of both separating parents in a child's life will further the child's welfare.

What changes does the new parental involvement provision bring in?

The new provision contained in section 11 of the Children and Families Act 2014 amends section 1 of the Children Act 1989. It relates to the law on decision-making as to where a child should live and who the child should have contact with, after a relationship breakdown. Following the passage of the Children and Families Act 2014, where a court makes or approves this decision, it is now known as a child arrangements order (formerly residence and contact orders).

These decisions are required to be made in accordance with the welfare of the child. According to s. 1(1) of the Children Act 1989, "where a court determines any question with respect to the upbringing of a child ... the child's welfare shall be the court's paramount consideration". Section 1 contains a checklist of relevant factors that a court should consider when making a determination of what is in the child's best interests.

Section 11 of the Children and Families Act 2014 amends this provision by adding that the court, in relation to each parent involved, shall "presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child's welfare". This means that the court shall now work under the assumption that it will be in a child's best interests for both parents to be involved in a child's life. However, this presumption will only apply where the parent "can be involved in the child's life in a way that does not put that child at risk of suffering harm"; and unless there is "some evidence" to suggest that involvement of a parent would put the child at risk of suffering harm.

What does parental involvement mean?

Following a successful campaign by children's rights organisations, family lawyers and academics led by Coram Children's Legal Centre, a definition of parental involvement was inserted into the act. According to this, involvement is defined as: "Involvement of some kind, either direct or indirect, but not any particular division of a child's time."

This definition makes it clear that the parental involvement presumption does not amount to so-called "shared parenting", which involves a 50/50 split of the child's time among two parents.

Why is the definition of parental involvement important?

Coram Children's Legal Centre was concerned that if the definition was not included in the new legal provision, the presumption that the involvement of both parents in a child's life could lead to separating parents assuming they are legally bound to share access to their children.

There was a fear that this presumption could therefore endanger the welfare of the children whose parents are separating. There was also a concern that the decision of where a child should live and who a child should have contact with would focus not on what is in the best interests of the child, but rather on the perceived "rights" of parents.

Legal Update is produced in association with experts at Coram Children’s Legal Centre

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