Barder: Exceptional and rare
In April this year, significant amendments were made to the family justice system. One of the major changes only came into force on 22 October and will affect separating parents going forward.
Section 11 of the Child and Families Act 2014 (the Act) now provides that, when the court makes a decision about who a child should live or spend time with, there is a presumption (unless the contrary is shown) that the involvement of both parents in the child’s life will further the child’s welfare. This has also been referred to as ‘the presumption of parental involvement’.
The presumption is an important and arguably long overdue change to the law which recognises that both parents have a significant role to play in their children’s upbringing, whether or not the child spends more of their time with one of them.
What does it mean in practice?
When the presumption was first proposed, there was panic among family lawyers that it would mean that, as a starting point (and unless the contrary was shown), the courts would assume that it was in the child’s best interests to live with both parents following the breakdown of their relationship. This is not in fact the case and the Government has not gone as far as countries like Australia where, if an order provides for shared parental responsibility, the Court must consider whether the child spending equal time with each of the parents would be in the best interests of the child.
Instead, the English courts are specifically directed to have the presumption of parental involvement in mind when making decisions about where children should live and how often they should see their parents. ‘Involvement’ is also defined in the Act as direct or indirect but not any particular division of a child’s time. This means that, contrary to what some believed, the presumption does not mean that it will be presumed that a child should live with both of their parents in some sort of shared care arrangement. The welfare of the child will always be paramount when decisions are being made about their lives and this will not be overridden by any presumption in favour of the parents.
I don’t think that the presumption of parental involvement will significantly change the advice we give our clients or the court’s approach, because, in practice, the courts have for some years started with the assumption that a child’s best interests will be met by both of their parents having an input in their lives. It seems that the Act only reinforces that position. In every case, if welfare reasons exist for one of the parent’s involvement to be limited, then the court will still do this.
In fact, you could argue that the Act slightly limits the practice previously adopted by the courts by making specific reference to direct or indirect contact. This is because the court’s position has for some time* been that it is almost always in the interest of a child whose parents have separated to have direct contact (unless the contrary is shown) with the parent with whom they are not living.
What I do think is important is that attitude to children’s care is changing and the law is clearly adapting to social change. We no longer live in a world where the mothers always stay at home and naturally become the main child carer. Increasingly, both parents have a significant childcare role, either because the mother also works full time (and children are also looked after by a nanny or au pair) or both parents’ work arrangements are flexible and allow for a more equal sharing of responsibilities. In those cases, it might be appropriate and in the child’s interest to maintain the shared care regime, should the parents separate.
So have things really changed?
The singer Bob Geldof has recently criticised the courts for the way children proceedings were handled when he separated from his late wife, Paula Yates, 20 years ago and it was ordered that their children stay with her. He says that he only saw his children, whose care he had been involved in during the relationship, “once a fortnight at the start”.
This raises some interesting questions:
Has anything changed in the last 20 years that means Bob Geldof would have got better access to his children now, had he split with Paula in 2014?
As referred to above, the law and the court’s approach have adapted to social change. In recent years, the courts had been increasingly willing to make a shared residence order in respect of children. This meant that, rather than living with one parent and having contact with another, the order would state that the children lived with both parents at different times. This didn’t mean that children would live with their parents on a strictly 50:50 basis; a shared residence order could provide for children spending, for example, Thursday to Monday and a Wednesday overnight with one parent on alternate weeks and the rest of the time with the other.
The term residence order (and therefore shared residence) is no longer used following the changes implemented in April. Residence and contact orders have been replaced by child arrangements orders, which can still state where a child will live and who they will spend time with.
Had Bob and Paula separated in 2014 and it was clear that he had had a role in the children’s care, and if it was decided that it was in their interests for a shared care arrangement to be put in place, I think that the court would order that the children ‘live with’ both parents and spend more than once a fortnight with Bob. The exact division of time would depend on what was in the children’s best interests, how close Bob and Paula lived and how they got on as parents.
What does shared care generally mean?
It is still not common for courts in England to order a pure 50:50 shared care arrangement as it is generally believed that the stability children require after their parents separate is best served by having one main ‘base’. However, we have many clients who agree (as opposed to the court ordering them) to shared care arrangements either on a 7 night/7 night alternating basis or a two week rolling pattern where children spend, for example, a long weekend with one parent one week and a night or two with them mid-week the following week. Our courts must still look at arrangements which work for the children, but if this can be achieved by spending significant time with both parents, the courts try to accommodate this. It is fair to say, as can be seen by the caveats in place regarding what the presumption means, that the courts are still very far away from assuming that parental involvement means equal division of time for children between their parents.
Would Bob and Paula’s children have had a say today in who they would have preferred to live with?
The Children Act 1989 provides that children’s wishes and feelings should be taken into account when making a decision about their future arrangements. The Government also announced in the summer the commitment to children being given a voice in family proceedings.
It is likely that a court welfare officer would be responsible for speaking to the children and reporting back to the court and the parents on what their views were. The older the children, the more likely it is that their views would be taken into account.
The exact details on how children’s voices will be heard in practice are yet to be finalised, but we are hopeful that the latest initiative will bring about better and more balanced outcomes for parents and children alike.
You may also be interested in reading previous blogs we’ve written on the subject of children’s feelings and wishes being heard.
*Re P  2 FLR 314
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