March 21, 2014

How will new family laws determine children’s fate?

Child Arrangement Orders, designed to meet the best interests of the child, rather than what a parent wants, are a cornerstone of The Children and Families Bill which becomes law on April 22.

Kate Banerjee, head of our children’s department, answers key questions about this critical aspect of the new legislation which aims to ensure that both parents are involved in their child’s upbringing.

What’s prompted the new law? 

The Government is keen to encourage divorcing couples to be less confrontational and to avoid going to court.  The new legislation is more focussed on the child’s best interests and on empowering both parents. It is designed to promote joint responsibility about where their child will live, when the child will see the other parent – and how often.

How will the new legislation affect children of divorcing parents?

Child Arrangement Orders will be less prescriptive than the current system in which judges can issue residency and contact orders setting out which parent the child will live with and how much contact the other parent will have with the child. In theory this change should mean that both parents are involved in the upbringing of their offspring, making joint decisions on the time that the child will spend with each parent.

How will these Child Arrangements Orders ensure that both parents are involved in their child’s upbringing?

As a family lawyer dedicated to children’s matters including contact and residence disputes, I am still working through the finer points of the new legislation. However, the idea is that parents will be more involved in the decision-making process.  They will be encouraged and supported to agree on what is best for their child, rather than a judge imposing an order for where a child should live, and with whom.

What process do parents need to follow under the new development?

Child Arrangement Orders are one element of the new Children and Families Bill.  As my colleague David McHardy outlined in a previous blog, this includes the introduction of a single family court and a compulsory Mediation Information and Assessment Meeting (MIAM).

This means that both parents will be required to undertake a MIAM. This is a meeting lasting about 45 minutes with a trained mediator to see whether mediation will be suitable for them before they can go to court to sort out matters relating to their children.  Experienced mediators, such as my colleague Fiona Kendall, will be in the new single family court, to support couples and provide a MIAM.

What if parents can’t agree on what’s best for their children?  

Following a MIAM some couples may find mediation useful to help them agree on where their child will live and how frequently and for what duration the other parent will see the child. In other cases, there will be parents who can’t agree – and this may be for a variety of reasons, including unreasonable behaviour, real antipathy towards each other or even abuse.

In my view even with these new laws in place, there will be occasions where a judge will still have to rule on where the child should live – but the process and final orders may not be as clearly defined as the current residency and contact orders.

What do you see as the benefits of this imminent milestone?

I welcome Child Arrangement Orders as a way of promoting greater collaboration between parents to help them to agree on the child’s best interests without undergoing a traumatic court process. It is understandably much better for a child if parents can set aside their own differences and not use a residency or contact order as a stick for one parent to punish the other.  Also, I have witnessed parents, often fathers, feeling deprived because they don’t spend enough time with their children and are prevented from being equally involved in the upbringing of their children post separation.

Conversely what challenges do you envisage it will bring?      

There is a possibility that court intervention will be the ‘elephant in the room’ because, in my experience, there are some parents who have no alternative but to go to court.  No one embarks on the court process lightly with regard to their children – they do so because they need to. People will continue to think and behave in the same way and new legislation won’t change that.

The importance of educating couples and parents is vital in helping them to understand what this new legal language means – and to know what to tell their children with regard to where they will live.  With a residency order it was made clear by a court where a child should live – from April 22 it will be vaguer.  With parents who are in conflict and can’t agree on arrangements, some children may feel in limbo and ask ‘where is my home?’, ‘where will I live?’.

In the countdown to the Children and Families Bill our family law experts will be examining the key issues and addressing some of the significant changes.  We will be updating you on developments via our blog.

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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