Section 11 of the Children and Families Act 2014 will come into force today, the 22nd October. This section introduces the presumption of parental involvement. It amends the Children Act 1989 by requiring a Court to now presume, unless the contrary is shown, that ‘involvement’ of the parent in the life of the child concerned will further the child’s welfare. Over the years we have seen a shift in the idea that one parent has sole care of the children following separation with the other parent seeing the children for small pockets of time.
Changes in legislation have given some assistance for example through the change in terminology earlier this year from ‘Residence’ and ‘Contact’ to ‘Child Arrangements’. The Court has always had to prioritise consideration of the welfare of each child. This involves a balance of Article 8 of the European Convention of Human Rights, i.e. the ‘right to private and family life’ against any risk which the child might be exposed to in spending time with the other parent. In my experience Judges now routinely explain to parents in Children Act Proceedings that it is widely accepted that it is in the child’s best interest to spend significant time with both parents and for both parents to be fully involved in the child’s life. This is sometimes hard for the parent who has historically carried out the majority of the childcare to hear.
It is however, an important message, particularly where the main carer is very hostile towards the other parent’s involvement. Fortunately the message will soon be supported with more legislative backing.
This change in the law should make it harder for the parent who has historically had the majority of the care of the child to show hostility or unreasonable opposition to the child spending time with the other parent. The hope is that this will encourage both parents to work from the premise that the Court will expect and endorse the involvement of both parents in the child’s life. In reality however, it is perhaps unlikely to bring about a sea change in the approach of the Courts and family lawyers due to the definition of ‘involvement’. This term is defined as meaning “involvement of some kind, either direct or indirect, but not any particular division of a child’s time”. The presumption does not extend to a presumption that the child should spend equal time with both parents. Therefore it is still open to either parent to try to show that it is not in the child’s best interest for child arrangement providing for equal time with both parents, for whatever reason he or she may seek to assert. As such, allegations of risk (whether true or not) will still be a major factor for the Court in determining child arrangements. Subsequently, the way the Courts deal with such cases may not change significantly. Having said this, the introduction of the presumption does send a clear message to separating parents and hopefully, if the principle is widely publicised and referred to in the context of mediation, it will help the majority of parents to understand the Court’s approach and reach agreement amicably and without the need for proceedings. In theory, fewer applications to Court will ensure that Judges can concentrate on the more complex cases which do require judicial input. Either way, the introduction of the presumption of parental involvement seems to be, without question, another step in the right direction!