The Law on PA as it is today
English law comes from two main sources – acts of Parliament (Statutes) and case law (the decisions of judges).
There is no statute law on PA, and that is an area where STOPPA would like to see change.
But there is plenty of case law, where the doctrine of precedent applies.
‘Precedent’ is where ‘superior courts’ (High Court, Court of Appeal and Supreme Court) make decisions and lower-court judges have, in theory at least, to follow those decisions. The so-called ‘inferior courts’ are magistrates’ courts and county courts. In the County Courts, our cases will usually be heard by District Judges. These are always trained lawyers (solicitors and barristers). Appeals from District Judges go to Circuit Judges. After that, you can appeal to the Court of Appeal, ‘leap-frogging’ the High Court. Magistrates are not trained lawyers and rely on advice from their clerks, who are solicitors or barristers.
As we have said, here is plenty of case law on PA. It might seem daunting, but it isn’t really. The law is not perfect at all, but it isn’t bad. The problem is not with the law, it’s with the implementation of the law.
The problem is with judges.
Although there is no Act that specifically deals with PA, there is one Act that tells us everything we need to know – the Children Act 1989 (“The Act”).
This Act, which has over 100 sections, has been altered and amended by other statutes, but the Act thankfully subsumes it all. There’s not much to read or to know really;
- What the Act says (for our purposes) is that Courts must make only those orders that are in the best interests of the child, that is, that serve best the child’s welfare needs – this is the paramount consideration and ‘trumps’ all other factors (this is the “Paramountcy Principle”);
- Also, the Act (Section 1 (2)) aims to make ‘the system’ avoid delay, particularly important in PA cases, as delay enables the alienator, and causes further harm to the child, and is inimical to justice in all cases;
- The other part of the Act we are interested in says that a child’s best interests are best served by having both parents in its life (Section 1 (2(2A));
- Obviously, the child should spend time with both parents, but Parliament (Section 1 (2(2B)) did not go so far as to say that there should be any specific division of the child’s time between parents – this is an error and must be corrected to allow a rebuttable presumption that the child spends half its time with each parent. A rebuttable presumption means that this is what should happen, unless there are very good reasons for it not to happen.
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).
It is, we submit, obviously proper and just that a child should spend half of its time with each parent, unless there is a very good reason that this should not be so. Anything less than that is gender-discrimination, which the courts and Parliament are, or should be, anxious to avoid. Nevertheless, even giving parents equality must be trumped, as must every other consideration, by the Paramountcy Principle, and judges will need to use their discretion, on a case-by-case basis. There are many instances, STOPPA would argue, where a man is a better parent than a woman. This is nothing to do with gender really – it’s simply that some people are good people and good parents, and others are bad people and bad parents, or, to put it less dogmatically, some people are better parents than others, regardless of gender;
[read the full Act here]
- So far, so what? This is all plain common sense, right?
Well, yes, but what we have to do now is break it down a bit. What exactly do the child’s best interests look like ‘on the ground’ as it were? For CAFCASS a child’s best interests are simply what the child wants, or says it wants.
This of course is woolly-headed nonsense.
Everyone has the right to respect for his or her private and family life, home and correspondence. This right is subject to proportionate and lawful restrictions.
The obligation on the State under Article 8 is to refrain from interfering with the right itself and also to take some positive measures, for example, to criminalise extreme breaches of the right to a private life by private individuals.
This means that, if you suffer the loss of contact with a child because of the inaction or incompetence of ‘the system’, you can sue the government for compensation. Awards are insultingly low, and that should change see our recommendations for the future page but if more people made these claims, or if there were a class action against the UK government pressure would be brought to bear.