Posted: Wednesday 9 November 2011
Not without my children
With the publication of the Family Justice Review panel’s final report on the 3rd November, the chairman has branded family justice slow and incoherent. The panel was tasked with reviewing the entire family justice system in England and Wales.
It was established that the average case takes over 60 weeks to come to a conclusion. it seems vital to get a decision quickly and allow the child to settle into, what will hopefully be, a long term routine.
The report also contains a continued refusal to give both parents equal rights. The justification for this decision is to encourage the focus to remain entirely on the welfare of the child as opposed to the rights of parents. The report states “no legislation should be introduced that creates or risks creating the perception that there is a parental right to substantially shared or equal time for both parents”.
The situation in Scotland is different. Following the changes made by the Family Law (Scotland) Act 2006 parental rights and responsibilities are now acquired by unmarried fathers who are acknowledged as the father on the birth certificate. Prior to these changes if a child’s parents were not married, only the mother acquired parental rights and responsibilities.
In Scotland, shared parental responsibility is encouraged (providing it is in the best interests of the child). Indeed, under Scots law, one of the parental responsibilities is to maintain personal relations and direct contact with the child on a regular basis if the child is not living with the parent.
The report’s rejection of a presumption of shared parenting arrangements has sparked controversy particularly among Father campaign groups. Ken Sanderson, CEO of Families Need Fathers, stated that: “The problem is not that parents are inadequately aware of what parental responsibility means; the crux of the matter is that it is all too easy for one parent to simply ignore this and omit the other from their child’s life, with a justice system which is unable to take firm action to prevent this.”
What is important is that shared parenting/care is requires a high degree of co-operation and s not simply a right to be enforced regardless The child’s best interests must be paramount as opposed to the expectation that the children will literally split their time equally between their parents. Courts must also provide swift and consistent attitude to cases so as to reinforce the message to parents that the issue is not about them, but their children who more often than not need both parents to remain as involved in their lives as before any separation. Sadly swift decisions or indeed consistency across the jurisdictions has not yet been achieved even under the rather more balanced Scottish system.
The family law team at Morton Fraser can provide expert advice on child welfare issues including child contact and residence.
