News article published on: 20th June 2012
Last year, economist David Norgrove, was commissioned to review the family justice system and made recommendations to the government. Today the government has formally responded.
A big rebuke has been to ignore his recommendation of “no change” to the Children Act 1989 with regards to shared parenting. Norgrove’s report had said: “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.” However the government has decided to change the Children Act 1989 to include a “presumption of shared parenting”. The changes are part of an overhaul in family law that is described by the Law Society as “the most important” in more than 20 years.
In Australia, a similar provision for a ‘meaningful relationship’ was made in their 2006 family law reforms. This led to more court battles and damage to children because the term ‘meaningful’ has come to be measured in terms of the amount of time each parent has with a child rather than the quality of their relationship with the child. Ken Clarke described the Australian experience as “disastrous” on Radio 4’s Today programme this morning.
Lisa Pepper a partner and collaborative lawyer Osbornes solicitors comments:
“I have many cases acting for parents (usually father’s) trying to see their children and it is heartbreaking. They can endure a court battle for many years, and huge expense. The court’s ultimate weapon is imprisonment of the other parent for non-compliance with court orders requiring them to allow access. Understandably, the courts are reluctant to go down that route because the child will suffer and it can backfire if the parent goes home and can say “daddy put mummy in prison.” Given that Ken Clarke recognises the pitfalls in the Australian experience this change in the law will require some very careful drafting indeed”.
Mediate don’t litigate
Parents are to be 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. Any parent wishing to take the other to court to fight over the caring arrangements of the children is to have to attend a Mediation Information and Assessment Meeting (that’s MIAM not MAIM) unless they fit into one of the narrow categories of exceptions.
Lisa Pepper continued:
“Any lawyer worth their salt is going to discuss and encourage collaborative law and mediation with their client. It is the best option for many couples, but it isn’t right for everyone. I’m not just talking about those cases where there is domestic violence. One person in a relationship might have been subject to mental abuse or bullying for example. They don’t want to sit face to face and try to sort things out, they feel too intimidated. You need to be able to go into mediation positively and be ready to make concessions. If you know one of you can’t do that why should you be forced to go – and to have to pay for it. Forcing couples into mediation goes against the whole spirit of mediation in my view.”
Lisa Pepper is a partner at Osbornes Solicitors LLP. The Legal 500 describes her as “constructive and smiling whatever the challenges” Lisa is a specialist collaborative lawyer recognised by independent family organisation Resolution.
The family department at Osbornes is recommended and ranked by independent legal directories Legal 500 and Chambers & Partners. Our specialist family lawyers in London advise on all aspects of family lawincluding divorce law.