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30/10/2014 By: Nicola Rowlings
Last week, the new presumption for parental involvement contained in Section 11 of the Children and Families Act 2002 came into force. On the face of it, it sounds as though this could be a fundamental shift in the law relating to the arrangements for the time the children spend with their parents on separation and divorce, but opinion is divided as to whether, in fact, this will lead to a significant change.
At the moment the relevant statute says that when a Court is deciding any questions in relation to the upbringing of a child, “the child’s welfare should be the Court’s paramount consideration”. (Section 1 of the Children Act 1989). The change brought in by the 2014 Act (Section 11 of the Children and Families Act 2014) elaborates on this, making clear that when a Court is looking at an issue to do with the arrangements for a child the Court should “presume, unless the contrary is shown, that the involvement of that parent in the life of the child concerned would further the child’s welfare.” “Involvement” is then defined as meaning involvement of some kind, either direct or indirect, but not any particular division of a child’s time.
Therefore, although the change in legislation will, for the first time, introduce into the statute relating to the arrangements for the children, a presumption that parents should both be involved in the lives of their child, on separation/divorce, the general consensus seems to be that this change is unlikely to make any great waves or changes in the way in which Courts actually deal with these arrangements on the ground. The change does not extend to a presumption that a child should spend equal amounts of time with both parents, or even that both parents should spend time directly with the child. So for example this presumption would not stop a Court finding that, based on particular facts of the case, the child’s welfare means that a parent should not be involved in the child’s life. Indeed, some commentators are arguing that because this change mentions specifically “indirect” contact between a child and a parent (for example, telephone contact or email, letter or Skype contact) this may indeed undermine the assumption that direct contact (so face to face time) between a child and both of its parents is a good thing.
So although an interesting change, and one which has generally been welcomed by both parents and family lawyers alike, it is still a long way from any kind of presumption in law, or in practice, that on separation or divorce a child should spend equal amounts of time with both of its parents.Nicola RowlingsProfessional Support Lawyer and Sarah YoungmanTrainee Solicitor