Letter to Prime Minister - Operation of the Family Courts

In the letter, the Rt Hom Sir Alan Bleith MP sets out the Committee’s opposition to the insertion in law of a legislative statement changing the present responsibility to safeguard the rights of the child in an attempt to promote shared parenting.

The full text of the letter is as follows:

Rt Hon David Cameron MP
Prime Minister
10 Downing Street
London
SW1A 2AA

11 July 2012

Co-operative Parenting Following Family Separation: Proposed Legislation on the Involvement of Both Parents in a Child's Life

I am writing to you about an issue of great concern to the Select Committee because it is widely believed that you have taken a personal interest in it and have significantly influenced the direction of policy making;  I refer to the proposal to change the Children Act 1989 in an attempt to promote shared parenting.

The Justice Committee’s Report, The Operation of the Family Courts, Sixth Report of Session 2010-12, HC 518, made clear our opposition to the insertion in law of a legislative statement changing the present responsibility to safeguard the rights of the child in an attempt to promote shared parenting.

The Department for Education has now published its Consultation which contains four possible draft clauses designed to promote shared parenting.  The Committee remains strongly opposed to this policy and all four variants; it appears to be legislation to remove a perception which has no foundation in fact.

In coming to this conclusion in our Report we heard evidence from a number of organisations on both sides of the debate.  Like the Family Justice Review, we concluded that the idea of promoting shared parenting by changing the wording of the Children Act 1989 was seriously flawed:

1. To promote shared parenting through legislation undermines the paramount principle of the welfare of the child;
2. There was no evidence to suggest that Judges were not starting from a position in favour of contact being maintained with both parents;
3. The majority of applications resulting in no contact were abandoned by the applicant parent;
4. It would be wrong, by a change in the law, to imply that parents have rights over children rather than responsibilities for children;
5. A legislative statement, however drafted, which inserts concepts for furthering "involvement", will be equated in the minds of warring parents as a right to equality of time;
6. The Australian evidence showed that cases where the child’s or parent’s safety was at risk were not being effectively filtered out of the shared parenting scheme by the courts;
7. The proposal takes little account of the fact that 90% of separating parents do not use the courts, and that the remaining 10% of cases that do reach court are frequently those with multiple problems.  Attempting to further parental involvement in this 10% of cases by changing legislation is to fundamentally misunderstand the nature of the issues in these cases;
8. Contrary to the stated aim of reducing the number of Court cases, the Australian experience showed that the insertion of a legislative statement was likely to lead to some parents being less willing to negotiate and resolve arguments over child contact outside court; and
9. Extensive litigation seems likely to result from parties litigating to reconcile two competing principles – the welfare of the child and the duty to promote shared parenting.

In their Final Report, the Family Justice Review agreed with us that no legislative statement promoting meaningful relationships should be introduced because “... the core principle of the paramountcy of the welfare of the child is sufficient and that to insert any additional statements brings with it unnecessary risk for little gain.”

We have yet to be provided with any evidence or argument that properly counters the evidence we and the Family Justice Review considered before concluding that there should be no changes to the current legislation.

We do not consider that the current draft clauses avoid the pitfalls of the Australian experience.  It appears that the Department for Education considers that avoiding words such as “equal time” or “meaningful relationship” is enough in itself; we disagree.

On 13 June 2012 the Parliamentary-Under Secretaries of State for Justice and Education appeared before our Committee to discuss shared parenting and other issues relating to the family courts.  We were extremely concerned that insufficient consideration appeared to have been given to how the presumption in favour of shared parenting would be rebutted, despite the failure to effectively filter out cases involving safety fears being a key failing of the Australian reforms.

We remain of the view that the introduction of a statement will simply lead to confusion, and will risk undermining the central principle of the Children Act 1989 that the welfare of the child is paramount.  It remains unclear to us how the Government intends that the two tests will work in tandem in the difficult cases that end up before the Courts.  The Consultation Paper and information we have received so far makes no effort to engage with the criticisms of shared parenting, nor properly explain how the pitfalls of the Australian experience will be avoided, beyond stating that they will be.

The Committee is keen to scrutinise the Children and Families Bill, and we have received a letter dated 5 July 2012 from the Minister of State for Children and Families setting out the Department’s proposed timetable for pre-legislative scrutiny.

We remain extremely concerned that clearly expressed and well researched conclusions of our Committee and the Family Justice Review are being ignored.  We would ask you to respond to our concerns, and explain why the Government considers such reforms to be of benefit to families, and in particular, children.

I am writing in similar terms to the Secretary of State for Justice, the Minister of State for Children and Families, and to the Parliamentary-Under Secretaries of State for Justice and Education.

Rt Hon Sir Alan Beith MP
Chair
Justice Committee

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