The Queen's Speech - Changes in Family Law

In the Queen's speech reference was made to a change in family law to promote father-friendly access arrangements and introduce a legal presumption of shared parenting.

This principle has been debated before and very recently in a report produced in November 2011. In that report a warning was issued to the government against such a formal legal presumption, for reasons including: the risk that it will compromise children's safety; uncertainty of meaning; and that it will not recognise family diversity.

In the report Professor Helen Rhoades of the Melbourne Law School reflected on the Australian family law system, which has already introduced legislation to implement similar proposals to those being advocated by the government.

According to Australian law, the courts must have regard to the benefit to the child of having a meaningful relationship with both parents. The Queen's speech includes a consultation on legal options to strengthen the law in England and Wales to mirror such an approach; however Professor Rhoades pointed out that research in Australia has shown that the family law system in Australia does not adequately deal with issues of family violence and child abuse.

The report in 2011 was of the strong opinion that the move towards a shared parenting presumption could create an unacceptable risk of damage to children.

This position was rejected by the government and we can see from the Queen's speech how the matter may now be readdressed.

In England and Wales a presumption already exists that parents have an inherent right to have a relationship with their children. In all cases the starting point will be that each parent should have a relationship with their child, unless such contact would cause or would be likely to cause significant harm to the child.

When deciding whether or not to exercise this presumption the court takes into account a checklist of factors regarding the circumstances of the child, whilst having the child's welfare as its paramount consideration.

Difficulties often arise in cases concerning children where allegations of abuse are made against a mother or a father; whether such abuse is physical or emotional or in some other form. In those cases the court must make a decision as to whether or not the allegations should be further investigated, which ordinarily will cause further delay.

In these situations it is plain to see the conflict between the presumption of parent and child relationship, against the need to safeguard the welfare of the child. In some cases malicious allegations might be made against a parent but in others the risk might be very real. It is an extremely difficult balancing exercise for the court and the legal professionals to conduct in cases where in the first instance there may be no evidence available to make a quick and fair decision.

My worry is that any legislative measure to formally recognise shared parenting would contradict the general principle that the child's welfare should be the paramount concern of the court. There is a risk that it would bring more focus on the rights of the parent rather than the welfare of the child.

My further concern would be that it would create confusion for all parties including the legal profession. Research in Australia has certainly shown this to be the case. It would also potentially raise unrealistic expectations for parents, particularly in relationships where some form of harm has been experienced or alleged.

If the legislation were to be introduced, I believe there would need to be very careful consideration towards a definition of the meaningful relationship presumption, balanced against a careful definition of where it is safe and in the child's best interests.

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