Adjustments to the Act
Let’s start off by saying that the Children Act 1989 is an excellent piece of legislation. Helpfully, it pulls together all other Statutes that affect children, so we really need only to look in one place.
There are, however, some problems – things that could be improved…
STOPPA advocates a rebuttable presumption that when couples separate, children’s time should be split 50-50 between the parents.
The Conservative party had an opportunity to effect this, with the passing of the Children and Families Act 2014 which amended S1 (2(2b) of the Act. The ’50-50’ rule could have been inserted into the Act, but instead we got a watered down version, saying that absent parents should have “involvement of some kind.. either direct or indirect, but not any particular division of a child’s time”.
The argument, it seems, is that this is not a matter of parents’ rights, but of the child’s welfare.
Of course, the Paramountcy Principle (that a child’s welfare needs ‘trump’ all other considerations) should remain to the fore – even to the detriment of equality between parents.
But the key word here is REBUTTABLE.
Rebuttable simply means that parenting should be 50-50 as a default situation. That can, of course, be overridden if doing so would be in the child’s best interests, and that is a matter for the judge.
Perhaps we should follow Finland’s example…
The big point here is that the Paramountcy Principle has nothing to fear.
In financial matters, the Supreme Court introduced, in effect, a ‘rebuttable presumption’ that each party gets half of the matrimonial assets, although the Court was at pains to point out that its decision was about avoiding gender-bias as to the roles of men and women in marriage, rather than the issue of equal division of assets as such (White vs White).
Nonetheless, if we value our children as much as we value our cash, a rebuttable presumption of equal-time parenting is a starting point.
Delay and the ‘No Order’ Principle
Take a look at these two bits of the Act:
“In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay [STOPPA’S emphasis] in determining the question is likely to prejudice the welfare of the child.” (S1(2))
And, the second bit:
“Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all.[STOPPA’S emphasis]” (S1(5))
There is an obvious ‘tension’ here isn’t there?
Whilst S 1(2) tells a judge to ‘get on with it’, S 1(5) tells him/her ‘if in doubt, do now’t’.
The problem, in STOPPA’s view is with S 1(5). STOPPA is not concerned with general matters involving children, but only with cases involving PA. What needs to be recognised is that
PA cases are different to normal cases involving children
The reason for this is that, whilst it may be the case (and we are not convinced here) that doing nothing is the right default approach in most cases involving children, it is certainly not the right approach in dealing with PA cases.
This is for the simple reason that delay gives the alienation a chance to establish itself and for the estrangement of a child from a parent to become permanent.
Delay is inimical to justice in all legal cases, STOPPA argues, but for PA cases delay is particularly pernicious, because, in PA cases the victims of this delay are children.
What strikes us forcefully is that it is possible to explain PA to any reasonably intelligent layperson in about 10 minutes, yet it takes our courts 10 years to sort it out, if they sort it out at all. The ‘no order’ principle is a chief cause of that delay. It simply gives judges an excuse to sit on their hands.