For many, the new Children and Families Act 2014 is a long-awaited step in the right direction. It provides statutory recognition that it is in a child’s interests for both parents to remain involved in their life. To quote the from the Act exactly: “… the involvement of [each parent] in the life of the child concerned will further the child’s welfare”.
There is an exception to this, namely where a child is at risk of harm. However, what the Act fails to define is the word “involvement” – and this could cause us problems. Does this mean that the starting position in any dispute is for the child to spend an equal amount of time with each parent? Sadly, for many parents and father’s rights groups, there is no guarantee of equal access. Involvement could simply mean indirect contact by letter or telephone calls. There is no requirement for contact.
The aim of the Act is to prevent loving, single parents (predominantly fathers) from being pushed out of their children’s lives. The Family Court’s existing approach is to consider the importance for a child to maintain a relationship with both parents, albeit they may spend an unequal amount of time with each. So what does the Act really offer over and above this approach?
Well, there are a few changes in terminology which will assist greatly. To date, the labels used by the courts often lead to one parent feeling more empowered than the other. Predominantly, mums have “residence” (and, ultimately, control) of the children and fathers have “contact.” The new Act provides for a single child arrangement order which will define where the children live at a particular time. It remains to be seen whether the new approach will achieve the desired outcome: to support the idea that a child has two separated parents who will co-parent them in their two homes, albeit the children may spend more time in one than the other.
More emphasis is being placed upon the requirement for separating parents to attend mediation before issuing court proceedings, to the extent that it will be compulsory to do so, even if that is only an initial Mediation Information and Assessment Meeting (MIAM). From the parents’ position, this sends a clear message that they must try to co-parent and reach an agreement without issuing litigious proceedings. In practice, a good family solicitor should always consider other options before advising a client to issue proceedings. There will always be cases where mediation is just not appropriate or it is clear that it will not work. It is arguable that the requirement to attend mediation will seek only to slow down an application, which in itself could be more detrimental for the child concerned.
In divorce proceedings, the court currently requires a form to be completed, known as the Statement of Arrangements for Children. The form contains basic information, such as the child’s names, where they live and proposed living arrangements. This will no longer be a requirement under the new Act. The question is whether this assists couples going through divorce. In reality no, other than to slightly reduce the costs associated with the preparation of the form. If there is a dispute about a child that cannot be resolved through either mediation or another means of alternative dispute resolution, it is dealt with in separate Children Act proceedings and not the divorce, in any event. So apart from reducing costs very slightly and reducing the paperwork stored at court, there is no real benefit to parents, it seems.
So where does that leave us? Progress or not? After a lot of discussion and anticipation, there are changes afoot but they really do not appear to impact significantly on the current approach adopted by the court and family solicitors.
Woolley & Co Family Law Solicitors