Substantial changes to children and family law are anticipated with the newly introduced Children and Families Bill just having gone through its second reading and debate. The Government’s aim is that the Bill will move sufficiently quickly for the key practical changes (to the way Courts deal with family cases) to coincide with the introduction of the Single Family Court by the Crime and Courts Bill in April 2014.
Significantly, the Bill seeks to remove the current definitions of residence and contact orders which are to be replaced with what is known as the new Child Arrangements Order.
A Child Arrangements Order is anticipated to regulate arrangements as to with whom a child should live, with whom a child should spend time or have other types of contact, or when they should do so.
Issues regarding the exercise of parental responsibility for a child will remain under the umbrella of specific issue or prohibited steps orders.
The idea is to focus on the content of an order, rather than its name. The replacement of residence and contact orders and the introduction of Child Arrangement Orders is hoped to herald a move from terms that suggest winners or losers in private law disputes in relation to children.
What are currently known as “contact activity directions” and “contact activity conditions” will be known simply as “activity directions” and “activity conditions”, which will encompass a wider range of activities that can be directed or imposed over and above the promotion of the contact being provided for, or the contact being considered by the Court. The word “contact” has been removed, suggesting that activity directions and activity conditions will be aimed more generally at improving the involvement of a person in a child’s life, or indeed establishing or continuing that person’s involvement.
The Government disagreed with the Family Justice Review on whether there should be a statutory presumption of shared parenting or parental involvement (in private law children proceedings). The Family Justice Review concluded that the fact that the central principle that the welfare of the child is paramount was sufficient and that introducing additional priorities or presumptions brought “unnecessary risk for little gain”.
In spite of this, the Government has decided after all to introduce a presumption of parental involvement. This will not apply to all parents but is expected to require the Court, when deciding applications (or for variation or discharge, or section 8 orders) to presume unless shown otherwise, that the involvement of each of the relevant child’s parents will further the child’s welfare.
Notably a parent only falls under that presumption “if that parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm…” (to be introduced within a new section 1(2A)). Accordingly, the Court would have to decide where such a presumption may apply, or whether the presumption is then rebutted because it is shown that the involvement of the parent would not actually promote the child’s welfare.
The Government has sought to stress that the Bill does not give or imply the creation of any right to equal time, and that the paramount principle (namely that the welfare of the child is paramount) is not to be displaced.
We shall have to wait and see whether this new terminology promotes greater harmony, or whether it simply shifts the emphasis of disputes.
If you wish to speak in confidence to Melanie or Tanya, please telephone us on 01992 892214.