This week the headlines have been full of claims that fathers have now been given equal rights to see their children, following the launch of a government consultation for proposed laws for parents on separation. However, this is not actually the case, and with lawyers warning of an increase in disputes between parents, and fathers' rights groups claiming they are the "worst Father's day card ever", the proposals have met with a confused and lukewarm reaction. So what has the Government actually proposed?
What the proposals will do:
- Amend the law to place an explicit requirement on courts to consider the benefit of the child having a continuing relationship with both parents, alongside other factors affecting their welfare.
The government has suggested four options as to how this would be achieved, from placing this as the starting point for the courts to consider when asked to make an order for who a child should live with or how often a parent sees their child, to it just being one of the factors they must consider.
- Increase the powers of enforcement available to the courts if one parent ignores an order, including withholding the parent's driving licence or passport, or placing a curfew order on them so that they are required to be at a certain address at a certain time. However, the Government recognises that the more serious powers will only be used in exceptional circumstances, as with those that are currently available (including imprisonment or transfer of residence of the child to the other parent).
- Promote alternatives to going to court, including mediation, counselling or reaching agreements through collaborative law (in which the parents would work with specially trained lawyers to reach an agreement outside of court). They plan to set up an online resource, to be available by the end of 2012, to provide information and support for parents upon separation, as well as giving judges greater powers to order parents to attend mediation or require them to do so before going to court.
What the proposals won't do:
- Give parents a legal or equal right to see their child. Currently, there is no legal right for a parent to see their child, the law currently being focused on the child's welfare, rather than on any rights of the parent.
Where one parent is preventing the other from seeing their child, they can apply to the court for an order that contact. In most cases, unless there are concerns about the child's safety, this will be granted. But that is not an absolute guarantee and the proposals will not change that.
- Ensure that the child will spend an equal or similar amount of time with each of their parents, which is something that fathers' rights groups had been campaigning for. While the Government initially seemed receptive to that idea, they have moved away from this to the concept of "co-operative parenting" and ruled out any legislating for any appropriate division of time.
Again, this reflects the prevailing view that providing a starting point for how much time a child spends with each parent runs the risk of ignoring what is best for the child, where individual circumstances are not suited for a one size fits all approach.
- Give parents any greater ability to play part in their child's life upon separation. If a parent has Parental Responsibility, then they will have the full rights and responsibilities to make key decisions in their child's life. Mothers automatically have Parental Responsibility, as do fathers who were married to the mother at the child's birth or unmarried fathers who are on the child's birth certificate (after 1st December 2003). The proposals will not increase these responsibilities, and nor will they give them to those fathers who do not have it.
When launching the proposals, the Government said that their aim is to shift the perception that the courts are biased towards on parent and they wish to make clear that both parents should play an important part in their child's life. In practice, however, the courts generally take that approach, and yet the perception of unfairness remains. But are new laws the best way of changing the perception? There is a risk of further confusing parents as to what their legal position is, as has been seen in the reporting of the proposals.
It is undoubtedly better for children that both of their parents play a proper role in their upbringing if they are able, and any steps that can help parents resolve their difficulties outside of the court, whether directly or through alternative services such as mediation, should be encouraged. But surely the best way to ensure that both parents can and do play an active role in their child's life is to highlight the benefits of an active involvement and to place an equal role of the value of both parents, not just on separation, but at all stages of a child's life and at all levels of society.