Children and Families Bill

Memorandum submitted by Professor Hamilton (CF 17)

Opening statement of Professor Hamilton

Children and Families Bill Public Bill Committee Oral Evidence Session

Professor Hamilton strongly supports measures that promote meaningful relationships between children and their parents, both before and after parental separation. However, it is her view that introducing a legislative presumption to this effect is not the way to achieve this, and is likely to lead to the undermining of the ‘welfare paramountcy’ principle and to harmful unintended consequences for children. It is noted that the clause benefits from use of the word ‘involvement’ rather than ‘shared parenting’ or ‘shared time’, and from allowing courts to exclude the presumption where ‘some evidence’ suggests that involvement of a parent would put the child at risk of harm. These changes are welcomed from the original provision set out in the government’s consultation document, as they go some way to minimising the potential risk of the provision leading to harmful outcomes for children.

It is Professor Hamilton’s position that a statutory presumption of shared care (in any form) is the wrong approach to promoting cooperative parenting after separation. It is important to emphasise that the Children Act 1989 already successfully achieves this promotes cooperative parenting where this is in the best interests of the child. The concern is that amending the Act to include a statutory presumption will undermine the principle that "the child’s welfare is the court’s paramount consideration." It is critical that this determination occurs on a case-by-case basis according to each individual child’s circumstances and needs, guided by the child’s best interests and welfare above all other factors. As the law stands, in cases where involvement with both parents is consistent with the child’s best interests and welfare, the court will order arrangements to promote involvement.

It is Professor Hamilton’s view that introducing a separate statutory presumption would undermine the welfare principle, standardise decision-making, create a perception that parents have ‘a right’ to involvement with children and that their preferences ought to play into the court’s determination. However carefully drafted, it may shift the focus from quality parenting towards predetermined amounts of time.

It is concerning that the Government is considering changing legislation based on perceptions of a systemic bias in the family justice system where there is no evidence to support this. Robust research over the last 20 years has found no evidence of bias.  

While Professor Hamilton would like to reiterate the view that the Children Act 1989 sufficiently supports measures that promote meaningful relationships between children and their parents, in line with their best interests more broadly, and that a legislative amendment could lead to potentially dangerous unintended consequences, if the Government is determined to make a change, it is her view that the most appropriate way to do so is through an additional paragraph to the welfare checklist in section 1(3) of the Children Act 1989.

Inclusion of any potential legislative statement into the welfare checklist (s 1(3)) is a more appropriate way of pursuing HMG’s aim than introducing a free-standing provision. The case law is already well settled about how and when the checklist must be used. Judges, lawyers, Cafcass officers and others who use the Children Act regularly are experienced in using it: the addition of a further factor on the list would be easily accommodated by these professionals who will bear the responsibility for implementing any legal change. Conversely, the addition of a separate provision is likely to be complicated and unclear in its effects. It would not be clear how such a provision would interact with other existing sections of the Act, and it would require considerable amounts of litigation to reach a settled and widely understood interpretation.

If the government decides to retain clause 11, the term ‘involvement’ must be defined. The Justice Select Committee found that the word ‘involvement’, without definition, could contribute to misconception. Media coverage of the proposal that there be a statutory presumption in favour of shared parenting has already deluded many parents into thinking that they had a 'right' to a 50% share of their child's time or, at the very least, contact [1] . Clause 11 is also likely to have a negative impact in the 90% of cases decided out of court in ‘the shadow of the law’. There is a real risk that parents coming to their own arrangements will misunderstand clause 11, regardless of how carefully it is drafted, to mean a ‘right’ to shared parenting or equal time, which may cause parents to come to arrangements that are not in the best interests of the child. This will be more likely where there is an imbalance of power between the parents. The problem will be compounded by changes to legal aid this year, which will result in lack of access to independent legal advice and assistance for parents in these cases. The definition must include a stipulation that ‘involvement’ does not mean shared parenting and should not be defined as a measurement of time.

March 2013


[1] ‘ How a change in the law could give divorced fathers the same rights as mothers’ BBC One Breakfast, 26 th February 2013. Available at: http://www.bbc.co.uk/programmes/p015lp1j

Prepared 8th March 2013