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Get rid of law that hurts the innocent most
By Alasdair Palmer
January is traditionally the most common time of the year to initiate divorce proceedings. There are now over 2.3 million parents bringing up children on their own, and it has enormous social consequences: children who grow up in single-parent families usually get worse results in school, leave education earlier, and are more likely to be involved in crime.
No rational politician could possibly want to be responsible for social policies that actively encourage children to lose contact with one of their parents. But that is precisely what current Government policy does. About 150,000 children a year watch their parents split up. About one third of the parents end up in court, fighting over how much time each will spend with the kids. Within a couple of years, a very large portion of those children will end up losing all contact with the parent with whom they do not live.
Contact is usually lost for one very simple reason: the law encourages it to be lost. Legally, there is no presumption in favour of reasonable contact between children and both their parents. Lawyers will tell you that there is such a presumption in case-law: but that presumption is not in favour of reasonable, still less of extensive, contact. So in law, receiving one postcard a year counts as "contact". Indeed, actual face-to-face contact can be eliminated without the "presumption" being violated.
The law allows any consideration, no matter how trivial, to stop all material contact with the non-resident parent. Any attempt to get contact increased will be enormously expensive and will very often end in failure. Once a resident parent sets contact at a low level, it can take years of litigation merely to get permission from the courts for a first overnight stay. How can ministers who say they believe that "children need both parents" preside over a legal situation which ensures that many children have only one? Part of the reason may be that the ministers who proclaim such beliefs don't know what the law actually is. Ministers have stated that "the current legal position" is that "after separation, both parents should have a meaningful relationship with their children, provided it is safe".
But that is wrong. The law only requires that decisions be made "in the best interests of the child". And if you want to find out what "the best interests of the child" amounts to… well, good luck. You won't find the answer in the legislation, or in any other Government document. There are hundreds of pages of "advice" to officials on how cases of conflict between parents over contact with children should be tackled. But there is not a single sentence that defines in a meaningful way what protecting and promoting "the interests of the child" actually involves. Is it, for example, in the best interests of children that their time should be divided between their parents equally? Or is the best ratio 70 per cent with one parent and 30 per cent with another? Or 99:1? Should children have just one parent?
There is no answer in the legislation, and as a consequence, "the interests of the child" has become a meaningless incantation that can be used to justify curtailing contact with one parent to the point where it shrivels to nothing. Which is exactly what happens, thousands of times every year.
The situation is made still worse by the fact that the other fundamental "principle" of the relevant law is that "every case is different". The effect of that is to ensure that previous decisions cannot be used as a guide to future ones. Result? There are no principles at all.
To fix the central problem, the law needs to include the presumption that non-resident parents should have "reasonable contact" with their children. That presumption would of course be defeasible if it were clear that the non-resident parent was, for instance, violent.That would place the burden of proof on those who wanted to deny reasonable contact - which would make it impossible to deny such contact for trivial reasons.
As it stands, the law creates thousands of additional single-parent families every year. Everyone who cares about the future of the family in Britain must hope that someone in power has the courage to amend it.
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