Adoption and Children Act Proposal

Proposed Legislation

This proposed legislation, attempts to create a pre-separation formal agreement in respect of the upbringing and residence of a child following the separation of the child’s parents. Firstly the current law will be considered, then the nature of the problems this law creates will be addressed followed by the solutions the new legislation will introduce to alleviate these problems.

The Current Law

Under the current law there is a presumption that no order shall be made in respect of any child unless the making of an order is considered by the court to be better for the child than not making an order at all[1]. The definition of ‘better for the child’ is contained within s. 3 (3) of the Children (Northern Ireland) Order 1995 without getting into the details here. Following the separation of a Child’s parents it sometimes becomes necessary for the arrangements in respect of the residence requirements and contact measures in relation to the child and its parents to be formalised. There are two types of order which relate to these concerns.

The first of these is the Residence Order[2] which, as the name suggests, formalises the arrangements in respect of where the child who is subject to the order will live. In respect of this kind of order the court has the discretion to award residency to any party to the application in such proportions as the court feels is necessary and will in certain circumstances award joint residency to both applicants with the child living a proportion of the time in each applicant’s household[3].

The second type of possible order is a Contact Order. Here the court has wide ranging powers to ensure that reasonable contact is able to take place between the child and the applicant, with the view that contact should not be refused between parent and child unless it is in the child’s overriding best interest to refuse that contact[4]. In practice these orders generally provide for the parent with care being required to make the child available for contact with the non-resident parent at specified times.

Perceived Faults in the Current Law

It can be seen that the presumption of no order in respect of children has a wide ranging impact on the nature of the child’s ongoing relationship with their parents following the breakdown of the parent’s own relationship. Whilst it is still true that a large degree of contact between parents and children is informally arranged, there is a view that the parent with care is less likely to acknowledge that this arrangement is in any respect agreed[5]. It is suggested that this situation creates a degree of uncertainty for both parents, which in turn creates a level of anxiety and, given the inevitable probability of some hostility between the parties to a relationship breakdown. This conflict is detrimental to both parties and to the general well being of the child concerned.

This uncertainty in addition to the concerns raised in regard to the general wellbeing of the child will also inevitably cause certain parents to require more formality in the arrangements made. The only current recourse for these parents is through an application to the court. An application of this kind is expensive[6], especially in the case of contested applications and can also be extremely stressful for both parties. The hearing itself, with its inherent combative nature usually causes an inevitable degree of anxiety. The process leading to the hearing, applications, statements and the possible involvement of CAFCASS may well not only cause stress and anxiety but may also add fuel to conflicts which already exists between the parties. It seems that this financial and emotional the parents goes against the paramount welfare of the child set out in s 3(3) of the Children (Northern Ireland) Order 1195 and s. 1 of the Children Act 1989.

Another problem is that the court time and legal funding expenses attributable to family disputes of this nature places a burden on both the Legal Services and the tax payer.

Proposals for Reform

The proposed Children: Residence and Contact Act aims to rid the law of the inherent faults which have been described above by allowing parents of children to consider the care and residence needs of their children prior to the possibility of a relationship breakdown. The provisions of the Act would allow parents to complete a document, the specific nature of which will be provided for by the Act, which sets out the intentions of each parent in respect of their child should their own relationship break down. These specifics will include details relating to the residence of the child together with proposals for contact arrangements between the parent and child, presuming that residence is not shared, which are agreed under terms which are both reasonable to both parents and are in line with the paramount welfare of the child laid down by the Children (NI) Order 1995.

This legislation does not aim to replace the current provisions of the 1989 Act in respect of the orders available in relation to children, nor does it attempt to preclude those who are not parents yet entitled to apply for these types of orders under the existing legislation from being able to do so. It is also not intended that the Act would prevent parents at a later date, either prior or subsequent to the breakdown of a relationship, from seeking to alter the terms of the agreement, although in the latter situation it is proposed that permission must be sought from the court prior to the making of an application.

It is acknowledged that most parents do not foresee the possibility of a relationship breakdown when their children are born, and infact many couples would be uncomfortable to even talk about breakdowns at such early stages of life. However the Act aims to allow parents to consider this possibility and agree arrangements in their child’s best interest at a time when conflict and hostility do not exist.

Bibliography

Cases

G v F (Contact and Shared Residence: Applications for Leave) [1998] 2 FLR 799

G v G (Joint Residence Order) [1993] F L 615

Re B (Minors: Access) [1992] 1 FLR 140

Legislation

Adoption and Children Act 2002

The Children (Northern Ireland) Order 1995

Children Act 1989

Books

Black, J., Bridge, J. and Bond, T., A Practical Approach to Family Law 7th Edition (2004), Oxford: Douglas, G., An Introduction to Family Law (2004), Oxford:

Herring, J., Family Law, 3rd Edition, Longman, 2007 – excellent

Other Reading

McSherry D, Iwaniec D & Lakin E. Counting the cost: The Children (Northern Ireland) Order (1995), Social Work and the Courts, Queens University 2004 QU/ICR/07/0304

[1] S 8(1-4) of the Childern (NI) Order 1995 & Children Act 1989, s. 5(1)

[2] Ibid, s. 8(1)

[3] See for example G v G (Joint Residence Order) [1993] Fam Law 615 and G v F (Contact and Shared Residence: Applications for Leave) [1998] 2 FLR 799

[4] Re B (Minors: Access) [1992] 1 FLR 140

[5] Non-resident parental contact, 2007/8 (Omnibus Survey Report No. 38) (www.statistics.gov.uk)

[6] DOMINIC MCSHERRY, DOROTA IWANIEC & EMMA LARKIN

McSherry D, Iwaniec D & Lakin E. Counting the cost:The Children (Northern Ireland) Order (1995), Social Work and the Courts, Queens University 2004 QU/ICR/07/0304