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Important legal changes proposed within Children and Families Bill - how these may affect separating parents and their children.

Tags: Children and Families Bill, 2nd reading, proposed legal changes, separating parents
Content Types: What to expect

The Children and Families Bill will have its second reading in Parliament on 25th February – the bill contains proposals to change the law in several areas, including parental leave, care proceedings, and the adoption process. Of particular interest to users of the will be proposals that affect arrangements for children following divorce or separation.

These proposals are controversial as they involve inserting a new clause into the Children’s Act 1989 which states

“…to presume that a child’s welfare will be furthered by the involvement of each of the child’s parents in his or her life, unless it can be shown that such involvement would not in fact further the child’s welfare.”

OnePlusOne developed to help separating and separated parents manage their emotions better and help them with various issues associated with parenting after parting; as an organisation we have been involved in a number of projects aimed at raising awareness of both the research evidence and complexities that exist around this hotly debated Government proposal.

When parents separate, provided it is safe, children are more likely to thrive if they have a good quality relationship with both mum and dad. However, many academics and legal experts do not believe that it is in the best interests of children for this to be included in legislation.

Courts are currently required to give paramount consideration to the welfare of the child when they are making a decision concerning a child’s care arrangements. This legal principle ensures that decision-making focuses on the needs and interests of each ‘individual’ child, rather than on the expectations of parents.  It also stops the courts from standardising decision-making, as it requires them to focus on each individual child's circumstances and needs. 

A legislative change that ‘presumes’ that involvement of both parents is in the best interests of the child could undermine this fundamental principle.  Only around 10% of separating couples currently go through the courts and in highly conflicted cases this change could have the effect of making conflict worse and could place the child at increased risk of harm. As countries like Australia found when similar proposals were introduced there is a mistaken belief that ‘shared’ parenting means ‘equal time’ with each parent. This mistaken belief often causes further battles for those parents who by definition of going through the courts are already struggling to resolve their difficulties.

The government has launched a new Public Reading initiative to give members of the public the opportunity to provide their views on Bills before they are made into law. This is the first Public Reading to be run by the House of Commons and is a pilot of the process. Comments on the Bill will be made available to the Committee of MPs responsible for examining the Bill in detail so that they can take them into account when deciding whether to make changes to the Bill.

A summary of comments left on the web forum will be made available to MPs on the Committee so that they can take them into account when considering the Bill.

You can find out more about the public reading and leave your comments on the Parliament website at

The public reading closed on 26th February comments are being collated and made available to MPs on the Bill Committee as it begins its work.


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  • User-anonymous KAtu Flag


    Sky, this “care and mediation service” you like the idea of… I know there are mediation services that have been offering a form of this for a long time, not solicitors, but people who have an understanding of law, family dynamics and decades of experience at dealing people in situations of conflict. Would the package you’re suggesting be obligatory? At what stage should it be offered to people?

    On the subject of the changes to the shared parenting legislation, I think there are situations where the one who has looked after the children so far (whether that’s mum or dad) feels that all their work is dismissed on separation. Now the other parent wants exactly equal time with the children. This often coincides with financial considerations, like access to benefits or a wish not to pay child support. That’s not necessarily about the child’s best interests. I think often dads who have been the one to look after the children are in a really difficult position here.

    I think the government is right to introduce a shift, to say that the priority is for both parents to have significant involvement in their children’s lives (unless this puts a child in danger). But if that automatically became seen as 50:50 – and without a lot more awareness raising this could be in danger of happening – in many cases that would not reflect the reality and could cause more disruption for children at the time of separation.

    What often seems to be the case at the moment is that the parent in the weaker financial position is in a stronger position regarding the children. Two imbalances don’t make a balance, though this situation creates more of a need for parents to negotiate. I think some of the less-spoken concerns about this legislation are about the consequences of changing that power (im)balance. I’m not sure the government can achieve a successful change in the area of shared parenting without also looking at the law on finances after cohabitation where children are involved. Otherwise the law on shared parenting will be constantly under pressure to meet other needs in addition to the right of children to a good relationship with each parent. And the core aims will continue to be distorted or confused.

    Wed 15, May 2013 at 9:49am
  • User-anonymous Bruno_Ditri Flag

    There now exists a plethora of scientific psychological and sociological evidence and research – some of which is Government-commissioned – in favour of ‘Shared Parenting’.

    It plainly demonstrates the emotional, developmental and educational benefits for children of remaining in a ‘meaningful’ relationship with both their natural parents, post separation/ divorce:

    As with most objective scientific inquiry, the evidence is never 100% conclusive. Selected research can always be found which fails to support ‘Shared Parenting’.

    However, meta-analyses of all the research available show a general consensus that children benefit from being permitted to remain in ‘meaningful contact’ with both their natural parents (except, of course, in cases where there is verifiable evidence of child abuse).

    Contemporary social scientists have confirmed what most major world religions have known for centuries – that children benefit from the love and guidance of both their mother and their father.

    Furthermore, most of the above scientific data in favour of ‘Shared Parenting’ has already been exhibited as formal evidence at the Family Division of the High Court, and has proved to be very persuasive indeed.

    After giving himself three weeks to read fifteen contemporary scientific reports in favour of Shared Parenting in the widely-reported case of Re D (Children) [2010] EWCA Civ 50, former President of the Family Division, Sir Nicholas Wall published his carefully considered view that family law (in the form of Payne v Payne) relegated the harm done to children by failing to support close, meaningful and on-going relationships between children and their non-resident parent:

    In Re AR (A Child: Relocation) [2010] EWHC 1346, High Court judge, Sir Nicholas Mostyn also made reference to contemporary scientific evidence in favour of ‘Shared Parenting’.

    It is vitally important to dismiss three prevalent myths concerning ‘Shared Parenting’:

    Firstly, ‘Shared Parenting’ does not necessitate a precise 50/50 division of parenting time. This would prove highly unworkable in many cases. Furthermore, most sensible parents are perfectly capable of understanding this important point. It is entirely possible for a non-resident parent to maintain ‘meaningful involvement’ in the life of his or her child at a sub-50% level of parenting time. Alternate weekends, mid-week overnight stays and half of school holidays should provide ample opportunity for a child to benefit from the ‘meaningful’ input of its non-resident parent. Any shared parenting plan would need to be based upon the particular circumstances of the family members.

    Secondly, if there is evidence of any significant danger to the child, contact can and will be restricted by the Court. The Government’s Children and Families Bill makes this perfectly clear, and I am very surprised that those who oppose ’Shared Parenting’ legislation appear quite blind to this very important safe-guard. The Bill does not undermine the Paramountcy Principle of the Children Act (1989) in any way.

    Thirdly, opponents of ‘Shared Parenting’ legislation claim that the judiciary already operates on the basis that both parents should be meaningfully involved in their child’s upbringing. If this were true, why do they object to enshrining the practice into law? They are plainly unaware of the fact that resident parents applying to remove their children overseas will, in most cases, be granted permission, due to the application of Payne v Payne (2001). Plainly, it is almost impossible for a non-resident parent to be meaningfully involved in the parenting of a child who is residing on the opposite side of the planet!

    Furthermore, many perfectly good and conscientious parents can face months or even years of exclusion from the lives of their children. Resident parents can exclude good non-resident parents simply by refusing to abide by contact orders or by maliciously lodging false or exaggerated claims of domestic violence. Proving their innocence can take many months of arduous and cripplingly expensive legal struggle, and it is hardly surprising that many of these good non-resident parents simply give up the fight.

    The law needs to protect a child’s right to be parented by both its parents; it needs to encourage non-resident parents to assume their parenting responsibilities, and it needs to discourage resident parents from using obstructive tactics.

    The Government’s Children and Families Bill aims to achieve these noble objectives, in the best interests of children.

    Best regards
    Bruno D’Itri

    Sat 6, Apr 2013 at 6:36am
  • Blank_av Skywalker Flag

    I have a background in psychology, and I am a qualified social worker (CQSW) and also a qualified SW Practice Teacher (CCETSW). I also trained in Rogerian therapy, and I have a Diploma in Integrative Counselling (BAC), and I have various other teaching qualifications. I also have more than 20 years experience of working in State welfare systems, and some NHS experience.

    I think the above post is a gross misrepresentation of the realities of the Welfare Court system it refers to.

    The reality of the term: "In the best interests of the children" is that it gives carte blanche to Court Welfare/CAFCASS officers to 'do as they please', which has allowed an institutional bias against fathers to prevail.

    This bias has been readily accepted by the legal profession, and Family Court work has been a lucrative soft option for solicitors who have gone through the motions of representing fathers in Court, only to passively follow the recommendations of the welfare report. Challenging a CAFCASS report has generally been considered a radical and rash thing for a solicitor to do, and in my experience, the mainly male dominated legal profession is generally pretty chauvinistic in attitude, and so many of the solicitors specialising in Family Court work have been only too happy to surreptitiously support the notion that a child's place is with it's mother, regardless of their client's instructions.

    Shared residence (which is what I think you are referring to while conflating the term with shared parenting) was initially seen as a reasonable starting point within the Children Act, however, various powerful forces militated against the use of such an order being made, the main one being recommendations made in Court Welfare reports supporting mothers as the main carer. A wider Political issues (with a capital P) has been the payment of benefits, i.e. it being much tidier and cost effective for Governments to pay child related benefits to one parent.

    Children in two homes of equal standing, obviously presents the potential for greater claims on the Benefit System.

    Understandably, the legal profession are up in arms at any suggestion that legal funding be removed for Family Work, which I would suggest has more to do with self-interest in relation to the loss of easy income, than anything to do with the best interests of children.

    Court Welfare Officers, now CAFCASS officers, have enjoyed a position of great power in the Family Courts, and they are very protective of their privileged position. Family Court Judges are mainly male, and I think it's safe to say they generally have very little experience of childcare, and so are only too happy to leave the day-to-day decision making to Court Welfare Officers, their role being to put the official rubber stamp on the decision.

    I think the intentions behind the Children Act were in the main very genuine and positive. As I've said in another post on this site, I believe the essential failing was a lack of structure to empower and enable parents in making calm and rational decisions at a time when their lives had been turned upside down by family breakdown.

    Had the vast sums of money spent on legal funding for the Family Court been spent on a 'National Family Care and Mediation Service', I think it would have been money well spent in: "the best interest of the children'.

    Unfortunately, the self-interest of those involved in this system has too often taken priority over what is in the best interest of children - children have no power, which means they have little influence on the arrangements made for them by people who think they know best.

    You wrote:-

    "This legal principle ensures that decision-making focuses on the needs and interests of each ‘individual’ child, rather than on the expectations of parents."

    What you state is purely theoretical, and not the reality.

    Also, how do you justify separating the expectations of parents from what is best for their children?

    The very great majority of parents I have met love their children, and want what is best for them.

    Give them the resources at the crucial time of need, and I believe 99.9% of parents will make good decisions for their children.

    Parents who find themselves in such difficult circumstances need people around with the skills to support and help them do the right thing, not arrogant and self-righteous people who think they know better.

    Shared residence can be a logical starting point for parents to begin from when negotiating living arrangements for their children. Arrangements for school and friends will have to be made, but why should that be a bar to equally shared parenting? There will be times when some parents are unable to share the parenting equally, but then if we are to trust these people with the care of their children, then we have to trust that they will be able to compromise and act appropriately.

    In an ideal world parents wouldn't split up, but that is not the kind of world we live in (not for most working people anyway). Managing co-parenting after family breakdown is about getting the best from a bad situation - something which quite a few of academics, and so called experts seem to miss.

    I have argued for many years that the Family Court should be reserved for only the most difficult cases, and that the vast sums of money spent on legal funding and CAFCASS should be invested in a National Care and Mediation Service. Relate have a wealth of knowledge and skills to draw upon for designing such a service, which would need to be combined with the knowledge and experience accrued through social-work, child psychology, family therapy, and positive learning from CAFCASS.

    In essence, a multi-disciplinary service with a real commitment to working: IN THE BEST INTERESTS OF THE CHILDREN and their PARENTS.


    Mon 1, Apr 2013 at 3:51pm