||The legislative framework which governs decisions about a child’s upbringing is gender neutral and focused on the welfare of the child and not any perceived rights of parents to any particular form or amount of parental involvement. Each case is determined on the facts by an independent judiciary, including in particular any risk of harm that the child has suffered or is at risk of suffering.
Legislation introduced in October 2014 is intended to help parents, regardless of gender. It puts beyond doubt the approach of the family court to parental involvement when asked by either parent to make an order about child arrangements. Under the law, the court is required to presume that the involvement of a parent in the life of the child concerned will further that child’s welfare, unless it can be shown that this would not be so. There would need to be very good reasons for a court to decide that a parent should not spend time with their child or that there should be no parental involvement at all.
Section 1(1) of the Children Act 1989 provides that the welfare of the child shall be the court’s paramount consideration when making any decision about a child’s upbringing. Under the provisions of the Children Act 1989, parents (as well as others who are eligible) can apply to a family court for a child arrangements order. This order may determine with whom a child is to live or spend time. If the court deems it necessary, the order can also provide for ‘no contact’ to be made with a child by any party to the order.
Judges in deciding disputed child arrangements are guided by the ‘Welfare Checklist’ set out in section 1(3) of the 1989 Act. This is a checklist of factors which the court must by law have regard to when determining what is necessary to meet the child’s welfare needs. For example, the factors in the checklist include consideration of any harm which the child has suffered or is at risk of suffering and how capable each of his parents or other persons are of meeting the child’s needs.
The law does not give either parent any legal right to any particular amount or pattern of involvement in their child’s life. If the court determines that a shared residence arrangement is necessary to meet the child’s welfare needs it can make an order to that effect. However, each case is decided on the facts and circumstances of each child and each family.
A mandatory 50:50 or substantially shared care arrangement of children would put some children and vulnerable parents at risk of domestic violence or neglect. In a significant proportion of child arrangements disputes before the courts, there are alleged serious welfare concerns which, in addition to domestic abuse, include drug or alcohol misuse.
The issue of parental involvement, and the current approach set out in the Children Act 1989, was considered at length prior to the introduction of legislation in 2014 which implemented the current presumption in law that a parent’s involvement will further a child’s welfare, unless there is evidence to the contrary.
The Government in 2012 consulted on various options for a parental involvement presumption in England and Wales, stopping short of specifying any quantum of parenting time. The presumption is a starting point and is rebuttable where there is evidence of harm or the risk of harm to a child. If a parent can be involved in the child’s life in a way that does not put them at risk of harm, the court will then consider what is necessary to meet that child’s welfare needs. This approach is compatible with the existing child-centred approach in the Children Act 1989.
More recently, the Ministry of Justice published the report from a panel of experts in June 2020 in which the Government has committed to review the presumption of parental involvement. Following concerning evidence submitted to the panel, we will consider whether the existing presumption strikes the right balance between the child’s right to a relationship with both parents, and the welfare of the child and each parent. We will announce further details soon.
Ministry of Justice