Let’s start off by saying that the Children Act 1989 is an excellent piece of legislation. Helpfully, it pulls together all other Statutes that affect children, so we really need only to look in one place.
There are, however, some problems – things that could be improved…
UKAP advocates a rebuttable presumption that when couples separate, children’s time should be split 50-50 between the parents. We support the FNF idea of Standing Temporary Orders, an idea imported from America. This is where, at the start of the case, the court orders shared residence or 50-50 contact, and that neither parent must change residence outside of a 10 mile radius of where they currently live…
The Conservative party had an opportunity to effect this, with the passing of the Children and Families Act 2014 which amended S1 (2(2b) of the Act. The ’50-50’ rule could have been inserted into the Act, but instead we got a watered down version, saying that absent parents should have “involvement of some kind.. either direct or indirect, but not any particular division of a child’s time”.
The argument, it seems, is that this is not a matter of parents’ rights, but of the child’s welfare.
Of course, the Paramountcy Principle (that a child’s welfare needs ‘trump’ all other considerations) should remain to the fore – even to the detriment of equality between parents.
But the key word here is REBUTTABLE.
Rebuttable simply means that parenting should be 50-50 as a default situation. That can, of course, be overridden if doing so would be in the child’s best interests, and that is a matter for the judge.
Perhaps we should follow Finland’s example…
“This is a question of gender equality, but it’s more a question of the rights of the child,” says Annika Saarikko, Finland’s minister of family affairs and social services, one of six female ministers out of a cabinet of eleven. “This is not about the mother’s right or the father’s right – but the child’s right to spend time with both parents.”
It seems that Mr Corbyn is unhappy because of some problems that seem to have arisen with the Australian model. But there are objections. Firstly, the report on which the criticism is based is not free from controversy. Second the report, from Dr Jennifer McIntosh, looks at 260 families. Given that the population of Australia is more than 24 million, it seems like it could easily be argued that these results are not representative, and that, overall, families are helped by the 50-50 presumption…Fathers’ advocate Barry Williams has been campaigning for shared care since 1980 and says Dr McIntosh’s study is “just a lot of rot”.
“They’ve looked at all cases in conflict when you read it (the study). They haven’t looked at the cases that are genuinely good cases where it’s working,” he said
In financial matters, the Supreme Court introduced, in effect, a ‘rebuttable presumption’ that each party gets half of the matrimonial assets, although the Court was at pains to point out that its decision was about avoiding gender-bias as to the roles of men and women in marriage, rather than the issue of equal division of assets as such (White vs White).
Nonetheless, if we value our children as much as we value our cash, a rebuttable presumption of equal-time parenting is a starting point. If, in an individual case, one party or the other wishes to make representations that 50-50 is not in the child’s best interests, he or she can do so.
The big point here is that the Paramountcy Principle has nothing to fear.
Delay and the ‘No Order’ Principle
Take a look at these two bits of the Act:
“In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay [UKAP’s emphasis] in determining the question is likely to prejudice the welfare of the child.” (S1(2))
And, the second bit:
“Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all.” (S1(5))
There is an obvious ‘tension’ here isn’t there?
Whilst S 1(2) tells a judge to ‘get on with it’, S 1(5) tells him/her ‘if in doubt, do now’t’.
The problem, in UKAP’s view is with S 1(5). UKAP is not concerned with general matters involving children, but only with cases involving PA. What needs to be recognised is that
PA cases are different to normal cases involving children
The reason for this is that, whilst it may be the case (and we are not convinced here) that doing nothing is the right default approach in most cases involving children, it is certainly not the right approach in dealing with PA cases.
This is for the simple reason that delay gives the alienation a chance to establish itself and for the estrangement of a child from a parent to become permanent.
Delay is inimical to justice in all legal cases, UKAP argues, but for PA cases delay is particularly pernicious, because, in PA cases the victims of this delay are children.
What strikes us forcefully is that it is possible to explain PA to any reasonably intelligent layperson in about 10 minutes, yet it takes our courts 10 years to sort it out, if they sort it out at all. The ‘no order’ principle is a chief cause of that delay. It simply gives judges an excuse to sit on their hands.