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Senior Family Lawyer Duncan Ranton on Parental involvement after Parents Separate

It’s official – on-going Parental Involvement in a child’s life is a positive thing! This proclamation, whilst bearing the hallmarks of coming from the Ministry of the Blindingly Obvious, in fact emanates from the Department for Education (DfE).   

The DfE announced today it proposes to introduce amendments to the Children Act 1989 to include a presumption about continuing parental involvement with children post-separation. The Children Act 1989 is the main source of law that governs relationships between children and their parents in England and Wales.The specific change proposed by the DfE reads as follows:"A court … is …to presume, unless the contrary is shown, that involvement of [a] parent in the life of the child concerned will further the child's welfare." Other changes will restrict the application of the presumption to cases where parental involvement can occur safely. If it cannot, and if parental involvement would put the child at risk, the presumption will be disengaged.An accompanying explanatory note explains that the purpose of these changes is to reinforce the importance of children having an on-going relationship with both parents after Family Separation, where that is safe, and in the child's best interests.Earlier this year, I wrote an opinion piece for the Solicitors Journal about the schism that had emerged between the government on the one hand, and the Family Justice Review on the other, regarding legislation to enshrine a legal presumption of Shared Parenting.

The FJR had ultimately set its face against such legislation, but the government disagreed and declared its intention to press ahead. Cue the division along predictable lines in response to the government’s stance, with many pressure groups auguring grave consequences for children and vulnerable mothers.  I found myself then in the uncomfortable position of having to agree with what appeared to be a principled stand by the Coalition government. My late father would turn in his grave! Even so, my view hasn’t changed over the intervening months. I just don’t buy the Henny Penny “sky is falling” response to these amendments from many quarters. Similar reforms introduced in Australia some years ago now proved successful in helping the majority of families. There remained a cohort of children whose circumstances made it inappropriate for the presumption to operate. That will doubtless be the case here. The DfE’s proposed amendments ensure sufficient flexibility to meet the needs of that small but significant group.  Many legal commentators have already asked today what the DfE proposals bring to the party. They say the amendments just enshrine what lawyers and Judges know already is the unspoken approach that will apply in cases about children’s relationships with their parents. Of course that’s right, as far as those working within the Family Justice System are concerned, but what of the lay clients? What of the increasing number of litigants-in-person who are unable to afford legal representation or advice, and for whom the safety net of Legal Aid has been ripped away? Surely anything that helps those parents resolve disputes about children post-separation should be greeted with at least cautious optimism. And if these reforms help alleviate pressure on our disintegrating court service by setting out the ground rules clearly, all the better.

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