Children & Families Bill - Pre-legislative Scrutiny

Background - During  November 2011 the Family Justice Review panel published its final report setting out its key conclusions and recommendations for the family justice system in England & Wales. The review  was sponsored jointly by the Ministry of Justice  the Department for Education  and the Welsh Assembly Government. It was led by an independent review panel, chaired by David Norgrove.The panel was asked to consider reform of the current systems for:

• resolving disputes about contact with children and where they should live when couples break up (private law);                        
• the process of divorce; and
• processes when local authorities apply to the courts to take children into care (public law)

Earlier this year the Government accepted the majority of the panel's recommendations including  helping and encouraging parents to resolve their disputes outside of court, introducing Child Arrangement Orders, speeding up care cases and  establishing a Family Justice Board to drive performance improvements to the system  Child Arrangement Orders were recommended to do away with the loaded terminology of "residence" and "contact" which, it was said, create a perception  of winning and loosing. In the final report of the review panel  the earlier suggestion to change the law so there would be a clause  that children have the right to a meaning relationship  with both parents was dropped. To this the Government  responded by saying it intended to introduce a clause too this effect anyway.  There followed   consultation (see Government's response here),  the Children and Families Bill was  drafted  and yesterday the Justice Committee published it's report on the pre-legislative scrutiny of the Bill. 

Child Arrangement Orders -  s2(3) of the Bill reads  "child arrangements order means an order regulating arrangements relating to any of the following ; (a)  with whom a child is to live, spend time or otherwise have contact …  The Justice Committee thinks that the meaning of a Child Arrangement or Child Arrangement Order is unclear  and it's unlikely a change to the wording of orders from  will remove the perception of winners and losers within the family courts. CAOs wouldn't change how international law relating to children operates and there is  a risk that the change in terms  away from contact and residence may be hard to interpret in other jurisdictions.

Shared Parenting - The legislative statement "to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child's welfare" is to be inserted into the Children Act 1989 by means of s1a  Children  and Families  Bill. The Justice Committee sees no point to  this as it doesn't change the current position. The law already acknowledges that a meaningful  relationship with both parents is generally in a child's best interests. In the Co-operative Parenting Consultation one of the most common complaints is problems with enforcement rather than the order the court made. 

The Justice Committee concludes; 

187. In our view, it is unlikely that the draft clause on shared parenting, on its own, will change perceptions of bias within the family court system, many of which are entrenched. It is possible that, in combination with changes to MIAMs and Child Arrangements Orders, there may be an overall improvement however slight in perceptions, but on balance, we think that is unlikely. Although the draft clause could lead to a few parents reaching agreement because their perception of the likely outcome of the Court process has changed, given the fact that these will be cases in which there is already a high degree of conflict, this is also unlikely.

188. We have considered the problems raised by individuals who provided evidence of their experiences, and we believe that the absence of enforcement of court orders is a bigger factor in the perception problem than the content of those orders. This makes it regrettable that the Government has not brought forward draft legislation on enforcement for us to consider as part of this pre-legislative scrutiny. Considering our conclusions on all four questions, we maintain significant concerns about whether the draft clause is a necessary or desirable legislative change.

189. We consider that any legislation on this subject, when interpreted objectively, should retain the paramountcy of the welfare of the child, and should prevent shared parenting orders being made where the child is at risk of harm, and/or where, whatever the level of parental involvement, that involvement would not further the welfare of the child. The problem, as we identify it, is how the clause will be subjectively interpreted by parents who appear before the Court, or who agree arrangements for residence and contact without a Court order, but on the basis of what they understand the law to say and mean. The distinction is one of technical drafting versus the practical effect on real families. We recognise concerns about the inclusion of the draft clause, and we consider that if the Government includes the clause in the Bill as introduced, the revised wording which we suggest may reduce the likelihood of its effects being misinterpreted.