The long awaited Family Justice Review (FJR) has been published. The FJR panel recommends legal reforms to the family justice system.
The report has not gone as far as some commentators thought it would, in terms of changing the law (the Children Act 1989) so that there was a presumption or principle that there was a need for the child to have a meaningful relationship with both parents. The report recommends: “No legislation should be introduced that creates or risks creating the perception that there is a parental right to substantially shared or equal time for both parents.”
There is a strong emphasis on making Parental Responsibility (PR) work, education for couples on PR and discharging PR in the best interests of the child after separation. Parents are encouraged to work together to develop a Parenting Agreement to set out the arrangements for the care of their children post separation, and access options such as collaborative law or mediation to help them resolve their dispute.
If the parents cannot resolve matters amicably and court proceedings are commenced, one important proposed change is to do away with Residence Orders and Contact Orders. Instead there will be a child arrangements order which will set out arrangements for the upbringing of the child. Any parent wishing to commence court proceedings should be required to attend a Mediation Information and Assessment Meeting (MIAM) and a Separated Parent Information Programme.
Lisa Pepper, partner and collaborative lawyer at Osbornes comments that “doing away with labels of Residence and Contact is a good thing. Parents can spend thousands of pounds on lawyers arguing through the courts whether they have the perceived one-upmanship of a Residence Order compared to the other parent having a Contact order. Although our advice is always that the amount of time a parent has with the child is the most important factor in a court order, the labels can be unhelpful.”
In terms of the report shying away from a presumption of shared care, Lisa recognised the difficulties that the authors found when wresting with this: “It hasn’t been a panacea in Australia. It is already accepted in law that it is in the child’s best interests to continue to have time with both parents. Although there is still the perception that courts favour the mothers, that is usually in circumstances where she has been and will continue to be the main carer. The court looks at the reality of the situation. In cases where the care of the children is shared, then the courts are more and more inclined to make Shared Residence Orders recognising the equal importance of both parents in the child’s life.”
The Government asked the Review panel to consider whether there might be circumstances when it would be right to link maintenance and contact. The report recommends that there should be “no link of any kind between contact and maintenance.”
Lisa says: “The report recognised the linking of maintenance and contact would be fraught with difficulties. It could risk strengthening the view held by some parents that it is acceptable not to pay maintenance where there are contact difficulties or that it is OK to withhold contact if maintenance is not being paid. Furthermore, it would be a tall order for any judge to sanction the withholding of maintenance if contact is denied. Maintenance is in the best interests of the child, and has to be looked at from that angle, even though it is paid to the parent.”