Justice secretary says overhaul of family justice system will put emphasis on children’s need for relationship with both parents
Photograph by Paul Hackett
Ken Clarke, the justice secretary, has published proposals to give divorced and separated fathers stronger rights to see their children as part of an overhaul of the family justice system.
Grandparents are also expected to get greater influence, amid plans to look into how “parenting agreements” could emphasise the need for parents to consider children’s continuing relationship with other close family members.
Other reforms include a six-month time limit for care and adoption cases in the courts, although Clarke insisted that flexibility would remain to ensure a time extension for complex cases where this was in the children’s interest.
The key change in the process is the introduction of rules making clearer that it is vital youngsters enjoy “an ongoing relationship with both parents”. Ministers have signalled that they will not offer the guarantee of equal access demanded by some fathers’ rights groups but want to ensure no loving parent is “pushed out”.
In an attempt to prevent custody cases reaching the courts in the first place, the government will promise an extra £10m for mediation services.
Where parents do end up resorting to the law, it will examine ways to amend legislation to ensure no parents are excluded unless they pose a safety or welfare risk.
Clarke told BBC Radio 4’s Today programme: “We want to put back confidence that the courts will have proper regard to the position of fathers and the right of the child to have contact with the father, but of course in the end the interests of the child must be uppermost and it isn’t always possible.”
The change forms part of the government’s response to a review led by the former Whitehall mandarin David Norgrove, but is directly at odds with one of his main findings.
Norgrove voiced his “regret” last week that a legal right would be included despite his report warning it could cause “confusion, misinterpretation and false expectations”. Similar changes in Australia led to delays in resolving custody disputes, he cautioned.
Clarke said Norgrove had initially recommended the move in his interim report but withdrew it following a visit to Australia. The justice secretary said the working group would have the “difficult task” of drafting a statement in the law of the “undoubted joint responsibilities of children, and the joint entitlements of children, without getting into the Australian problem, which was a disaster, because it led to a great increase in litigation with everybody arguing about shared time, and they didn’t draft it very well. We have to draft it with care.”
Clarke said: “We are stating what I think is the view of most people, that both parents have responsibilities and rights towards their children and the children are entitled to try to maintain contact with both parents if it’s at all possible. But what we are doing is going to state that principle in the law, because there are far too many people who still think it’s not being applied – though I do think the courts do apply it and try to apply it in most cases. But we are also going to have to draft what we do to avoid all the undoubted dangers in Australia which caused David Norgrove and his colleagues to be hesitant.”
Clarke said one thing that needed to be addressed was what could be done where one parent, usually the mother, refused to comply with the order of the court allowing the father contact.
Asked whether, in the case of a non-complying parent, he would rather the child were removed so that the father had more rights, Clarke said such cases represented a small minority. “The hardcore ones require the judge to exercise the judgment of Solomon. What we are suggesting is that at an early stage the judge makes it clear he or she does have powers to transfer custody.”
He added: “Of course it’s right that the interests of the child will finally determine it, but I think at an earlier stage in the case it should be made perfectly clear that the court like any other court will expect to enforce its judgments. These are all very difficult areas. They are not capable of simple solutions.”
Clarke denied there was an inconsistency between plans to increase the rights of parents in private law while, where care proceedings were concerned, the government was taking less account of parents’ rights by imposing a six-month limit on care proceedings that could mean a child being taken into care sooner.
Clarke cited the “intolerable” delays in care proceedings that can lead to a child being taken into care and eventually sometimes to adoption. He said the six-month limit was recommended by Norgrove and was designed to speed up the process, but he said there would be cases where the judge would be under a duty to explain why it would have to take longer.
“If they can’t sort it out within six months then the judge has to give reasons for the delay and the continued delay has to be tackled. Of course there will be some cases where it can’t be done but at the moment there is far too much delay in the court … in the interest of the child you cannot leave the child either exposed to risk or in an uncertain situation, delay adoption as much as we do.”
Ministers will also signal a desire to address complaints from grandparents’ groups that their needs are often ignored when children’s futures are being discussed.
Guidance will make clear that they should be formally considered when voluntary parenting agreements are being negotiated in an effort to avoid court action.
A working group involving five ministers will review the 1989 Children’s Act. They are the education ministers Tim Loughton and Sarah Teather, the justice minister Jonathan Djanogly, the equalities minister Lynne Featherstone, and Maria Miller, the work and pensions minister.
Catherine McKinnell, Labour’s shadow children’s minister, welcomed measures to ensure a child has an “ongoing and meaningful” relationship with both parents after separation or divorce, such as mediation and parenting agreements and mediation. But she warned that legislating for the right of both parents to an ongoing relationship “may carry significant risks”.
She said: “Despite a very long and thorough review, and against a background of confusing reports in the media, it’s not clear at all how the government intends to do this.
“I urge the government to consider very carefully how such legislation would be framed to avoid protracted arguments in the courts over interpretation which will inevitably lead to delays, and harm to the child involved. The Children’s Act 1989 firmly places the child’s welfare paramount, allowing judges to examine what’s best for the child in each individual case – which in the majority of cases will be for them to have an ongoing relationship with both parents. Nonetheless, we must guard against anything that would take the focus away from the child, a concern that has also been voiced by many children’s charities.”