Why the new Children and Families Act could do more harm than good

By Kate Banerjee, head of our children’s team

A new Act designed with children’s best interests at heart – and which rules that both parents should be ‘involved’ in their children’s lives – could have the adverse effect due to a lack of clarity.

Confusion about addressing the sensitive subject of child arrangements has been further exacerbated at a time when an unprecedented number of people involved in court proceedings over their children are representing themselves because they cannot afford to pay for lawyers.

Whereas courts could previously issue residency and contact orders in divorce proceedings to decide where a child would live and how much time they would spend – and when – with each parent – these orders have been replaced with Child Arrangement Orders which are extremely vague about where a child lives – and with whom.

My initial concerns are twofold:

1.    Confusion among parents representing themselves in court

Data under the Freedom of Information Act reveals that across November and December 2013 over 52 per cent of parties attending court proceedings about child matters did not have legal representation.

As a lawyer specialising in children’s matters, I am scrutinising the nuances of these new laws to enable me to best represent our clients in the family court.

I predict we will continue to see increasing numbers of parents who represent themselves and who may unwittingly misinterpret and misunderstand the complexities of the Child Arrangement Orders – particularly as the Act does not entitle parents to a 50:50 split of time with their offspring. Instead parents should both be ‘involved’ in their child’s life (unless there are concerns about safety) – with no legal definition of division of time or specified direct or indirect contact.

Court proceedings could likewise be more prolonged with parents frustrated and irritated in their attempts to clarify child arrangements. Judges will need infinite patience to help parents understand what the new orders truly mean and to help them reach agreements that are in the best interests of their children

2.    Couples can divorce without agreeing child arrangements 

Previously courts had to be satisfied that arrangements for children were settled before the decree nisi stage and lawyers would complete a statement setting out these provisions when filing a divorce petition.

Under the new Act, couples can receive their decree absolute without deciding provisions where their children will live and how often they will see each parent. I fear this will leave children caught in the middle as mum and dad – who are already divorced and moving on in their lives – try to agree a plan for co-parenting.

It is hoped under the new Act that parents will discuss, negotiate and if necessary, mediate a successful parenting plan without the need for a court to interfere. However, in my experience, such hope may be naïve as many parents require help and support to ensure their children’s needs are paramount.

As the legislation evolves it is my fervent hope that it will achieve what it set out to do – putting children’s needs at the core of our family justice system.

If you have any questions about Child Arrangement Orders and the Children and Families Bill please call us on 0113 246 0055, leave us a comment below or drop us an e-mail.

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