May 12, 2012

Who has the right to determine a child’s best interests?

By Peter Jones, partner

The cat is once again amongst the proverbial pigeons, following the announcement in this week’s Queen’s Speech that fathers may gain additional rights to see their children after a family break-up.

It has been confirmed that a consultation, the Children and Families Bill, will examine legal options to ensure that “where it is safe and in the child’s best interests” both parents will have a more equal relationship with their children after a family break-up.

But who really has the right – and the ability – to decide on a child’s best interests?

Fathers’ rights groups may be celebrating but take a moment to really think about the issues. Parents at loggerheads will rarely agree on the best long-term solution and, worse, may take the opportunity to sling mud or score points – or even hint at abuse. The courts generally fail to acknowledge that parenting skills are complementary, not competing, and will default to traditional arrangements. Who is to say that they will not simply repeat this method under a new formula of 50:50 contact, regardless of the consequences?

In a previous post I stated that the real issue in this ongoing debate is not about parents’ rights to equal time with their children but about how we make it work; how we help parents to really make the part-time relationship with their children a valuable and valued experience on both sides.

Of course it is right that both parents continue to be involved in their children’s lives, but every single case should be considered on its own merits, not as a one-size-fits-all solution.

Coupled with the government’s push away from the courts and towards enforced mediation, this change could actually create more problems than it solves. Yes, I agree that couples should be encouraged to find an out-of-court amicable outcome to their relationship breakdown. As trained and experienced mediators we know that mediation can, and often does, help clients to negotiate their own agreements and avoid resorting to the courts. But as a way of reducing the strain on the justice system, compulsory mediation is a hopelessly blunt instrument that could actually do more harm than good.

The proposal as it stands lacks vision. In order to achieve solutions that genuinely are in the best interests of every child, we must be much braver. We should seriously consider setting up centres of excellence staffed by experts in family law and child psychology; processes and procedures should be tightened up and accelerated; and every element of the new regime should be properly equipped and funded.

For those who complain that this would require a much greater level of financial support than the existing system, I say: children are an investment. To flourish and thrive they need our investment in terms of time, attention and care. So why don’t they deserve a corresponding financial investment in systems to protect and support them when their parents break up?

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