UK Family Law Reform

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-------Original Message-------
From: rebecca.hilsenrath@lslo.x.gsi.gov.uk
Date: 08/05/04 12:30:27
To: bgaynor
Subject: A Child's Right

Thank you for your email of 22 July to the Attorney General, which has been passed to me to reply to. As you may be aware, the Attorney General is the principal legal advisor to the government. As such, he is unable to offer legal assistance or advice to individuals outside government, or to comment on individual cases. Moreover, the responsibility for legislation in relation to access to children in divorce proceedings lies with the Department for Education and Skills, and with the Department for Constitutional Affairs. The views of the Department for Education and Skills, who are responsible for the Childrens Bill and for policy in this area generally, have been consulted in composing this reply to your email.

The Government supports the view that generally children benefit from a continuing relationship with both parents following parental separation, where it is in the best interests of the child and safe for all family members. It is already open to divorcing or separating parents to make what arrangements they consider reasonable for the future of their children, but, when they are unable to agree, problems can arise. There may, for example, be disputes about what level of contact is reasonable. It is only if either parent applies for an order for residence or contact with the child or children in question that the court steps in. There may be cases where contact is not in a child's best interests, for example where there has been abuse or violence.

The court is required by the Children Act 1989 (the Act) to make the welfare of the child concerned its paramount consideration. In deciding what would be in the best interests of the child, the court has a wide discretion to take account of all the facts and circumstances of each individual case. They are guided by a list of factors set out in section 1(3) of the Act, known as the 'Welfare Checklist' to establish "the ascertainable wishes and feelings of the child concerned considered in the light of his or her age and understanding".

The Government does not believe that a legal presumption of contact would be helpful. As the principles of the Act focus on the child, and what would be in his/her best interests, a legal presumption of contact would conflict with this principle. A legal presumption would also undermine the 'no order principle'. This principle is also set out in the opening section of the Act which states that the court should only make an order when satisfied that this is better for the child than making no order at all. In other words, where parents reach agreement on the arrangements for the future of their children, the court would rather not intervene in their lives and private arrangements unless absolutely necessary. While there is no legal presumption of contact between non-resident parents and their children, current legal interpretation of the legislation reflects the Government's belief that children generally benefit from a continuing relationship with both parents.

The term "contact" was introduced by the Act to replace the existing term "access" which implied that parents either won or lost their children. The Children Act is not about what is best for the parents but about what is best for the child. The term "parenting time" would change that focus from the child's welfare, to focusing on the rights of each parent. There is no automatic right to contact for either fathers or mothers, but in practice the courts have taken the view that in most cases the child's welfare is best served by contact with both parents.

The Government also recognises and values the important role which grandparents can play in children's lives and the considerable help which this can be to parents. Many grandparents are already involved with the care of their grandchildren and most children see their grandparents as important figures in their lives. The law allows grandparents to apply to the courts for contact with their grandchildren.

The Government is aware of cases where non-resident parents have difficulty in maintaining contact with their children because of the obstructive behaviour of the parent with whom the children reside. The enforcement of contact orders is a sensitive area. Deliberate refusal to obey any court order is contempt of court that can be punished with a fine or imprisonment. The court may impose a penalty proportionate to the seriousness of the contempt to reflect the court's disapproval and in an effort to ensure compliance in the future. The High Court and county court can impose a fixed term prison sentence of up to two years (two months in the magistrates' court). The maximum fine on any occasion is £2,500. However such penalties may not be appropriate in a child contact case because of the effect that this may have on the children at the centre of the dispute. The court may decide to transfer residence to the other (non-resident) parent, if this is considered to be in the child's best interests.

On 19 March, the Government published its final response to the Children Act Sub-Committee report 'Making Contact Work'. A copy of this response can be found at: http://www.dca.gov.uk/family/abfla/cascresponse.pdf

The Department consulted extensively on proposals to support more effectively contact arrangements between children and their non-resident parents. The main outcomes of the report are:- * A new 'Family Resolutions' Pilot Project in London, Brighton and Sunderland to divert families from lengthy and often acrimonious court cases by helping them to agree practical solutions between themselves wherever possible; * An additional £3.5million for child contact centres, including the funding of 14 new supervised contact centres; and * The introduction of new forms to ensure that judges are aware of and address concerns about domestic violence at the start of contact cases. The Government knows that difficulties in enforcing ordered contact causes concern in some cases. Together with the Department for Constitutional Affairs (DCA) we are exploring a number of options to introduce better arrangements for children when parents separate and divorce. This work will cover whether and how we improve compliance with court ordered contact, how we can better support parents in determining appropriate contact arrangements, and how post-order arrangements can be improved. The Government hopes to publish a consultative document based on this work shortly.

I hope this response is helpful to you.

Yours sincerely
Rebecca Hilsenrath

Rebecca Hilsenrath
Legal Secretariat to the Law Officers
9 Buckingham Gate
London SW1E 6JP
Tel: 020 7271 2415
Fax: 020 7271 2434

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