In Search of Simplification
  • 17th Jul 2014
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In many aspects of our lives we look for a simple solution to what might seem to be ever more complex problems. The legislature have attempted with the new Children and Families Act 2014 to deliver simplicity to separating couples when they need to make plans for their children.

Some people still talk about wanting custody and access in relation to their children, but those terms were replaced in 1989 by Residence and Contact Orders. Now these have been replaced with Child Arrangements Orders. The court can make orders defining; with whom a child is to live, when a child is to live with one person or another, with whom is a child to spend time and when or otherwise to provide for contact.

Key to these changes is the desire to reduce the number of battling parents arguing over how best to determine their children’s lives after separation or divorce.  

There have been increasing calls over the years from fathers for greater acknowledgment of the part they play in the upbringing of their children. The law has always stopped short of providing for equal time between mother and father.   That  both parents have parental responsibility was first recognised in the Children Act 1989 to acknowledge the shared parental role. 

When a court has to decide what arrangements need to be made for children one new principle will have to be considered.  It is the need to have regard to the presumption of continued parental involvement (not just responsibility) for both mother and father. The starting point is that both parents have a valuable role to play in the children’s lives.   

It is hoped that parents will be discouraged from adopting rigid and confrontational positions and embrace a better understanding of their obligation to share the parenting of the children.  To aid this, the new Act has brought in some compulsion to consider the use of mediation before going to court, other than in exceptional circumstances.  

There is more of an acceptance within the legal system today that children should be at the centre of any proceedings. The court is obliged to consider their needs, wishes and feelings.  Up until recently children have been kept out of the court, as far as possible.  There are now moves afoot to consult more with children.  It has been found that children feel they have not been allowed enough of a voice. Whether, in practice, children will be given more of a voice, without being  unduly harmed by being exposed to their parental differences remains to be seen.  Age appropriate involvement and good parental role models will be important to this development.    

A private members bill introduced early this year into the current Parliament by Baroness Deech proposes equal sharing of capital wealth between couples being divorced with a maximum of three years spousal maintenance, such as currently applies in Scotland, to simplify financial outcomes.  This looks unlikely to be made law but it will continue the debate about how best to resolve financial differences on separation and divorce.  

If you find yourself experiencing any of these issues then the specialists in the family law team at Whitehead Monckton who offer legal advice, collaborative methods of working and mediation are all well placed to assist.