By Duncan Ranton
The reforms implemented in Australia proved successful in the majority of cases, and the UK can learn from this experience, argues Duncan Ranton
Last week, the Ministries of Justice and Education published a response to the Family Justice Review. One particular aspect attracted extensive press interest, namely the government’s commitment to pass legislation to enshrine a legal presumption of shared parenting.
The government was responding to the recommendations of the Family Justice Review (FJR), chaired by businessman David Norgrove, which published its final report in November 2011.
In its interim report, the FJR advocated legislative change, drawing on evidence from Sweden and Australia about the real damage done to children in high-conflict disputes following parental separation. It suggested the insertion of a general statement of intent in the Children Act 1989 that reinforced the importance of children having a meaningful relationship with both parents post-separation.
Come the final report, however, the FJR had had a change of heart. Again citing the Australian experience, alongside contributions from individuals and groups opposed to legislative change, the review withdrew its earlier recommendation. Too great was the danger that to enshrine a child’s entitlement to have a meaningful relationship with both parents would create a perception of parental entitlement to shared or equal time.
The government disagrees. Having accepted almost all of the FJR’s other recommendations, they take the view that legislative reform in this area is vital. Lessons learned from abroad will inform how the amendment is drafted they say. The message ought to be that courts will expect both parents to be involved in a child’s upbringing, save in exceptional cases.
It is not surprising that this recommendation should be the focus of so much press attention, nor that the issue has been reported along gender lines, with reform generally supported by fathers and opposed by mothers (and their respective interest groups). When parents separate, often (but not always) the children live with their mother. Parental dispute is mostly about the time they should spend with their father. My experience, both here and in Australia, has been that sometimes parents – usually mothers – have very good reasons for being concerned about children spending time with the other parent. Domestic violence and abuse cases are the obvious examples. Often, however, there are cases where parents – usually mothers – have no rational welfare reasons for objecting to children having contact with the other parent. Rather, their resistance seems fuelled by the bitterness that follows the breakdown of the adults’ relationship.
Contrary to media reports that this is the government championing father’s rights, however, the proposal to enshrine in legislation that it is important for children to have a meaningful relationship with both parents is not about parental rights. It’s about children’s rights – their entitlement to see and have quality time with both parents, save in exceptional cases. The expression ‘quality time’ is bandied about too frequently and carelessly. As a result, it has lost much of its credibility and currency. However, it has a meaning, to be found in the many longitudinal studies of children following parental separation: in short, children generally benefit hugely from seeing and spending good-quality time with both mothers and fathers.
The FJR apparently shied away from its initial recommendation because of perceptions of what happened in Australia after legislative reform in 2006; that to confirm legislatively a child’s right to a meaningful relationship would translate into non-resident parents using that as a fulcrum to demand an equal division of time.
But was the legislation in Australia a disaster? No, far from it. In 2009, following a three-year study of 28,000 participants, the Australian Institute of Family Studies found the legislative reforms a substantial success. There was a decline in court filings and a shift away from parents rushing to court to resolve post-separation difficulties. A greater proportion of parents reported they were able to resolve issues themselves, supported by associated family relationship services. Nevertheless, the review confirmed that the family law system still had some way to go in responding effectively to the minority of cases where there were issues of family violence, child abuse, mental health or substance misuse. For children for whom these were not features of family life, the legislative reforms were found to have worked well.
I believe, therefore, the UK can benefit from Australia’s experience. We have seen the family justice budget decimated and access to courts to resolve parenting issues in anything other than truly urgent cases is beset by chronic delay. If parents know from the outset that a judge will approach most cases from the proposition that the child’s welfare requires a continuing and meaningful relationship with both of them, this will help promote agreement in many cases without the need to enter the court arena. That certainly seems to be the Australian experience.
No legislation can ever realistically hope to cater for every permutation of circumstances. Rather, good legislation should be directed to the majority of cases, while ensuring sufficient flexibility remains so justice may be done in those that are exceptional. The government’s proposal strikes that balance. The introduction of a statement reiterating the importance of children’s relationships with both parents post-separation is appropriate for, and will assist in, the lion’s share of separated families. There will remain an important minority for whom this mission statement will be inappropriate to direct the outcome, because of child protection issues.
I welcome the government’s stance, and support it. Given the real and continuing problems with access to justice and funding, coupled with the damage research demonstrates children sustain during bitter and protracted custody disputes, we do not have the luxury of timidity or inaction. Reform is needed, and this reform is a positive one.
Duncan Ranton is a family lawyer with Kingsley Napley LLP and qualified in Australia