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Family Law

The leading authority on all aspects of family law

05 FEB 2014

'Shared parenting' legislation amendment places child welfare before presumption of equal access

Journals Manager + Online Editor

@matthia5mueller

A consortium of children's charities has successfully campaigned for an amendment to the Children and Families Bill which it feared could endanger the welfare of children whose parents are separating.

The Shared Parenting Consortium, led by Coram Children's Legal Centre (CCLC) was concerned that the adoption of clause 11, which states that courts should ‘presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child's welfare' could lead to separating parents assuming they are legally bound to equally share access to their children.

The consortium, which includes NSPCC, wanted to ensure that clause 11 would not undermine s 1 of the Children Act 1989, which requires the child's welfare to be the court's paramount consideration when reaching decisions on their upbringing.

Following their campaign over the last year, an amendment to clause 11 has now been made which clarifies that ‘involvement' means involvement of some kind, either direct or indirect, but not ‘any particular division of a child's time'.

Speaking of the amendments, Baroness Butler-Sloss said:

‘The groups of parents whom I worry about in relation to Clause 11 are those who try to settle the arrangements for the children without going to court. In the absence of lawyers to advise either side, the stronger, more dominant parent may insist on an arrangement based on equality, or at least on disproportion which is not appropriate for the welfare of the children...

I also worry about those who would go to court with an erroneous view of what this clause actually means, and with an inbuilt sense of their rights rather than the best arrangements for the children. The purpose of this amendment is to give some clarity to the clause and to help the public come to terms with putting the welfare of their children first.'

CCLC's Director of International Programmes and Research, Professor Carolyn Hamilton commented:

‘The message to separating parents is that neither mothers nor fathers are entitled to a legally binding presumption of shared access.

Decision-making instead should rightly focus on determining the needs and best interests of each individual child, rather than focusing on the expectations of parents.

90% of access cases are settled out of court, so this amendment is crucial.  It will make it clear on the face of the Bill that the welfare of children is paramount.'

The Bill will today move from the Third reading in the Lords and be sent back to the Commons for consideration of the Lords' amendments.

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