There has been considerable publicity over the years regarding the issue of equal rights for parents. The publicity has sometimes been comical – with fancy dress characters in strange places but despite the amusing nature of some of the stunts, the issue itself is one of the utmost seriousness.
The issue of legal rights, or “Parental Responsibility (PR)” to give it it’s proper title is governed by the Children Act 1989. If parties are married, then both mother and father automatically have PR. If they are not, then whether the father has PR or not depends on the date the child was born and whether the father was registered on the birth certificate. Since 2003 if a father has been registered on a child’s birth certificate he will have automatic PR. If not then legally he does not have the right to be consulted on all the major decisions regarding the child’s upbringing. PR can be obtained either by signing a formal agreement or by court order.
One of the main areas of dispute which is covered by PR is the issue of contact between a child and a parent following separation. Recently the Government indicated an intention to introduce legislation which would ensure that each parent is able to see their children regularly or even equally following a separation or divorce. Whether this actually becomes law or not remains to be seen. There have been a number of previous consultations but no real new law affecting the issues has emerged since the Children Act. The report by David Norgrove claimed that access to justice was “slow and incoherent” and that children suffered from “shocking delays” over decisions. Mr Norgrove said that parents should be encouraged to make their own care arrangements when they separate and also stuck to an earlier recommendation that grandparents should have to go to court to demand contact with their grandchildren when it is denied. It had been suggested that there should be a presumption that grandparents should see their grandchildren.
However, he ruled out giving both parents equal access to a child, a key demand of fathers’ rights campaigners. Discussing this issue on BBC Radio 4’s Today programme: he stated that “Fundamentally, this is not about the rights of parents, it’s about the welfare of children and we should be focused entirely on that.”
The reality of the situation now is that despite all the publicity, the vast majority of parents are able to make agreed arrangements for the benefit of their children without the need to refer the matter to court or even for resolution between solicitors. The courts do not make orders regarding Contact and Residence for children unless there is a dispute and even then, only when it is truly necessary. When divorcing, a detailed document is filed at court setting out the arrangements for the children, and unless there are real areas of concern, the court will not intervene. That surely must be right – most parents know what is best for their children and can agree this amicably. It is often the case that imposing equal time with parents will not be successful in any event due to other commitments such as working, travelling etc.
It is the cases where the relationship breakdown is often bitter that make the headlines, and where one parent attempts to prevent the other from having contact, often for personal reasons rather than for the best interests of the child. Over 500,000 children and adults are involved in the family justice system every year. The children usually suffer most in these circumstances as they are caught in the crossfire, but the effect can range throughout the extended family – including grandparents and other half siblings. Just because someone has become a “bad” husband or wife does not make them a bad parent and parents must be encouraged in every way, by the whole legal profession and the courts to put their own personal feelings behind them and work together for the sake of the children. There is also nothing in law that says that children are better looked after by one parent rather than another – most mothers and fathers are equally good parents. Shared care arrangements can be extremely beneficial for children, but they work best where there is mutual respect and a real commitment. The courts already favour shared care where this is possible, although this does not necessarily mean equal time. Every family is different and what suits one family, or the most common arrangement of “every other weekend and tea in the week” may not be suitable for others. Indeed it is vital to consider the children’s own wishes and feelings. There is no set age in English Law at which a child becomes old enough to make up his or her mind regarding where to live. Each child is assessed individually and the test is whether the child truly understands the decision, which is assessed in the light of the child’s age and understanding.
If new legislation is introduced then as the government suggests, despite the contents of the Norgrove report, what will actually change? That remains to be seen, as even with the favouring of shared care now, there are many disputes. It is the most difficult, hostile and unusual cases that are disputed now and this will not change whatever new legislation is introduced. The problems between those parents will remain. Furthermore, if parents are forced into shared care it could introduce as many disputes as it seeks to solve. It is impossible to set up a system that covers every type of family. David Norgrove stated that the evidence from other countries, particularly Australia, is that if you force shared care “it leads to damage to children because you put them right in the middle of those last few per cent of parents who are separating who get into really violent dispute,” he added.
The key to avoiding the problems is to try to agree matters amicably, concentrating on the interests of the children as the paramount consideration and if necessary, seek help though expert solicitors, mediation or collaborative law. Resort to the courts should be an absolute last resort – to be avoided if at all possible. It can be very expensive, take a long time and the results are unpredictable. Legal aid is now unlikely to be available, so if you cannot afford a solicitor then you will need to appear in court yourself, which will be daunting for most people. Often neither party is happy with the eventual outcome and it is not always easy to enforce a contact order. It is much better and easier to live with an arrangement where there has been negotiation, agreement and consideration.
If you want to know more about the legal issues around divorce and separation then contact a member of our Family team on 01625 442100.