Equal Parenting
Mediation
Parents intent on making such an application must first attend a Mediation and Assessment Meeting, where they are given information about mediation and assess whether or not they could resolve their disagreement outside of the court.
Child Arrangement Orders
The Act replaced the former ‘contact’ and ‘residence’ orders by a Child Arrangement Order (CAO) covering such issues as who any children will live with, and how their time will be split between the parents.
Presumption of parental Involvement
Section 11 of the Act (the presumption of parental involvement) states that the courts are to presume that, unless there is evidence to suggest otherwise, the involvement of both parents after separation is in the child’s best interests. This does not provide an automatic ‘right’ to contact, or a guaranteed minimum time or form of contact. The government’s intention was to spell out to parents that both should remain involved in the child’s life wherever possible. This was the first time that the rights of children to a relationship with both parents had been recognised in primary legislation, although the term ‘involvement’ was not defined precisely, and must await clarification by court judgments.
Despite this posed neutral approach, after parental separation one parent will need to have residence of any children and the other parent only contact. Although both parents may have full parental responsibility, the status of each is unequal, since the resident parent in effect has ultimate control of the care and upbringing of the child, and the contact parent has little or none if the resident parent is so minded. The legislation can thus be a recipe for conflict in contested cases in child proceedings, since it promotes an adversarial situation.
All family proceedings at lower judicial level are held in private, with only the parties concerned and their legal representatives, together with court officers and any professional witnesses, being allowed to attend. All matters relating to a family cases are confidential. Family proceedings are not open to the media or to the public, or even to a member of Parliament. In contrast, family proceedings in the High Court and Court of Appeal are open to the media and public, but subject to reporting restrictions on names to protect the identity of any child(ren).
A ‘litigant-in-person’ (ie. a person representing himself) is now allowed to be accompanied in court by a layperson (a ‘McKenzie Friend’) to advise him (or her) and take notes, subject to the agreement of the court.
Court orders
Family courts are required to make formal orders only if they think these may be of benefit or appear necessary. In those cases where separating parents contest child arrangements, but who subsequently satisfy the court that no order is necessary, they remain thus free to work out the best arrangements for care of their child(ren).
In other cases, the court may decide that an order of some form may be necessary to clarify the situation about care of the child(ren), before the 2014 Act either by a residence order on one parent and a contact order on the other, or a by shared residence order, and after the 2014 Act by a child arrangement order (in effect probably saying the same).
Courts can also make orders designed to protect one or both parties in an acrimonious or violent family conflict, including a non-molestation order, and an occupation order, in which one party is ousted from the matrimonial home.
What happens in practice
There is strong anecdotal evidence that there has been, and maybe still is, a general, if not institutionalised, bias against fathers in many family courts. Not only is this inequitable to fathers, but it also does not go unnoticed by their older children, who see their fathers being treated as second-class citizens.
The 1989 Act prescribes that the “welfare of the child is of paramount importance”. This mantra has been interpreted by family courts in sometimes unusual ways, a frequent practice being to identify the welfare of the child wholly with that of the mother. Thus, any arrangements to give the father more involvement or contact with his children, which would or are likely to upset her, would be denied by the court, despite the rights of the child to a continuing relationship with both parents and the presumption of parental involvement in the 2014 Act.
By default, residence of the child(ren) is thus almost always associated with the mother, no matter how good or caring a father is. Many fathers accept this, and agree to being a ‘contact’ or non-resident parent. The success rate for fathers being granted sole residence in contested cases is less than 5%, and then usually only because the mother prefers this.
The problems for many fathers who accept being a non-resident parent come later, when agreed contact with their children becomes increasingly obstructed by the mother or even terminated for no good reason other than that she knows she ‘can get away with it’. Court orders in most cases do nothing to rectify this deliberate obstruction by the mother, family courts being reluctant to enforce them. Some fathers are known to have made literally dozens of applications for court ordered contact, at huge expense, but still without success. It appears that many mothers are allowed to be above the law.
