It has been reported that the government intends to create a working group to draw up changes to the Children Act 1989 in order to ensure that a child should continue to have a relationship with both parents in the event of separation. In what appears to be a move to offer absent father’s greater opportunity to remain in contact with their children following the demise of the relationship with their mother, the government are proposing to re-write the statute book.
The main issue fuelling such debate appears to be the argument that the courts ‘pander’ to the wishes of the resident parent who, it is true, is usually the mother. It is claimed that fathers find themselves having to apply for parental responsibility to gain greater rights to their children, when this is granted to a mother automatically, or having to apply to the court for regular contact, when the children tend, generally, to remain living with the mother.
In terms of parental responsibility, the law states that if the parents are married at the time of the child’s birth, they shall both automatically have parental responsibility. If the parties are not married and the child was born on or after 01 December 2003, the same is true if both names appear on the birth certificate.
It is therefore becoming a minority of cases where fathers find themselves having to ask for or apply for parental responsibility which, in the absence of any possibility of harm to the child, emotional, mental or physical, the courts are, generally, in favour of granting; thus bringing equality to the parents.
In terms of equal rights to have contact, the Children Act states that the welfare of the child is paramount. When considering matters relating to children, the courts must have regard to the welfare checklist; a few of which are the ascertainable wishes and feelings of the child, their age and understanding, the likely effect on the child of any change in circumstances, any harm that has been suffered or is at risk of being suffered and how capable the parents are in meeting the child’s needs.
As such, the Children Act does not discriminate between mothers and fathers in terms of where the child shall live and who they have contact with. While it is true that historically the mother has borne the responsibility of caring for the children while the father works to support the family, which has resulted in the children remaining with her in the event of separation, the courts do not draw this conclusion automatically. There are cases where the children live with their fathers, or increasingly, that they spend equal time with their fathers because the court recognises the need for a relationship to be had with both parents, provided it is in the child’s best interests.
The current Act seeks to focus attention on what is best for the child. Is it therefore right to change that emphasis to the wishes of the parents? While it may be right that changes are needed to redress the imbalance with respect to the acquisition of parental responsibility, does the rest of the Act, which does not discriminate, really need amendment? Will any such change really help the parents to move on from the stress and difficulty of separation, so that they are able to reach agreement, which undoubtedly must be in the child’s best interests?
