Government Response

The Government responded to this petition on Tuesday 30th March 2021

The government has no plans to give children and parents automatic rights to equal contact after separation. The best interests of the individual child remain paramount in deciding child arrangements.

The Government is aware that a non-resident parent can face difficulties when attempting to spend meaningful time with their child following separation or divorce. We are also aware of the negative impact that this can have on the affected parties’ mental health and wellbeing.

When deciding who a child lives with or spends time with, the child’s best interests must remain of paramount importance. Under the Children Act 1989 sub-section 1 (2A), when considering making a child arrangements order the court must presume that the involvement of a parent in the life of the child will further that child’s welfare, unless there is evidence to suggest that such involvement would not further the child’s welfare or would put the child at risk of harm. However, the nature and extent of that involvement will then be determined by the court based on the facts of each case.

The purpose of this subsection is to reinforce the importance of children having an ongoing relationship with both parents after family separation, where that is safe and in the child’s best interests. This subsection is not intended to promote the equal division of a child’s time between separated parents. Involvement under the Act means any kind of direct or indirect involvement, but not any particular division of the child’s time.

As such, whilst there is a presumption of parental contact, there is no automatic presumption of equal shared parenting, because this must be based on the individual child’s circumstances, wishes and needs. If the court determines that a shared residence arrangement is appropriate, practical and in the best interests of the child, it can make an order to that effect.

In determining the child’s welfare needs, the court will apply the factors set out in the ‘Welfare Checklist’ in the Children Act 1989. These include the ascertainable wishes and feelings of the child concerned, the impact on the child of any change in circumstances, and how capable each parent is of meeting the child’s needs. The court will also consider any harm the child has suffered or is at risk of suffering, which could include harm from witnessing domestic violence.

On the 25 June 2020, the Government published the Final Report on Assessing Risk of Harm to Children and Parents in Private Law Children Cases. The report contained a number of recommendations from a panel that included external experts. One of the recommendations made by the panel was “that the presumption of parental involvement be reviewed urgently in order to address its detrimental effects.” The report highlighted concerns over how the presumption is applied by the courts, particularly in relation to cases involving domestic abuse.

The Government launched a review on the presumption of parental involvement on 9 November 2020 and will address this important and complex issue. We want to ensure that any recommendations coming out of the review are based on a solid and thorough understanding of the ways this presumption is currently applied, and how this affects both parents and children.

If you would like to find out more about the review you can do so at: https://www.gov.uk/government/news/child-protection-at-heart-of-courts-review.

The Government recognises that family breakdown can be an extremely distressing time for all of those involved, especially children. The Government also recognises that lengthy court processes can exacerbate this distress. This is why we have taken steps to encourage, where appropriate, the use of family mediation. This allows parties to take ownership of their dispute and make their own arrangements about the future of their children. Mediation has been shown to be less expensive than being represented in court proceedings, less stressful and quicker than going through the court process. A survey by the Family Mediation Council, who are responsible for conducting Family Mediation Information and Assessment Meetings (MIAMs) on behalf of the Ministry of Justice, found family mediation led to a successful agreements in over 70% of cases. Where both parties to the dispute attended a MIAM, over 75% chose to go on to mediate, despite the fact a significant number initially thought that mediation would not work.

On 26 March 2021 the government launched the Family Mediation Voucher Scheme, under which parties involved in a family dispute involving children may be able to obtain a contribution of up to £500 towards their mediation costs. The scheme is being run on behalf of the Ministry of Justice by the Family Mediation Council and further information about the scheme can be obtain at Gov.uk or from mediators undertaking the Mediation Information and Assessment Meeting (MIAM).

The welfare of the child will always be paramount when decisions are being made about their lives, and this will not be overridden by any presumption in favour of the parents.

Ministry of Justice