The Family Justice Review (FJR), led by David Norgrove and published in November 2011, made proposals for significant changes to the way in which family cases are dealt with in this country. The Government has now responded, indicating its proposed next steps, and here we take a look at the issue of postseparation parenting.
The FJR emphasised the importance of both parents sharing responsibility for their children's upbringing and considered how that should be achieved, looking at issues of education and encouraging agreements outside of court for many families. One of the most contentious issues relating to shared care was whether there should be a statement in law which either recommended that there should be shared care wherever possible, or that there should be a presumption of shared care in all cases, unless proved to be inappropriate.
Fathers' groups and others had argued that although the current law appeared to treat both parents equally with the same rights and parental responsibilities, the reality was that fathers often had to fight to resist the suggestion that their contribution to children's care would be secondary. They argued that in the majority of cases following separation, care of the children was often given to the mother on the assumption that this would be in the best interests of the children and that involved fathers face an uphill struggle for recognition.
The FJR decided not to recommend a major change to the law to include a presumption of shared care in the legislation, in part because of concerns that any such principle would conflict with the major principle in the Children Act 1989 that children's welfare is paramount in any decision being made. The Review Panel looked at the Australian experience of amending the law in this way, which seemed to show that the presumption had led to many more contested cases, with some fathers interpreting shared care as always meaning equal time, leading to arguments over this interpretation.
Ken Clarke has now announced, however, that the Government intends to reject these recommendations of the FJR. Proposals will be brought forward to amend the Children Act 1989 so that the law could make clear that children could enjoy ‘an ongoing relationship with both parents’ and states the intention that any such change would not be seen as a 'right' for parents, but as something which 'in most cases will contribute to the child's welfare'.
Ken Clarke stated that “We want to put back confidence that the courts will have proper regard to the position of fathers and the right of the child to have contact with the father." He also signalled a desire to address complaints from grandparents' groups that their needs are often ignored when children's futures are being discussed.
This year will see further proposals and consultation on how the principle that a child should have a meaningful relationship with both parents would be brought into effect.