What is best for children should matter, not what is best for us

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The authorities down south may find themselves in a real tangle if they try and legislate further on what should happen to children when their parents separate.

Last year a major family justice review in England provided the backdrop for heated discussion that is likely to dominate family law issues down south in 2012.

Recently, the Telegraph reported on comments made by Tim Loughton, the Children’s Minister who, while confirming the universally held belief that children generally benefit from a relationship with both parents, also stated that the government was looking at the possibility of promoting shared parenting through legislative means.

We have to be careful not to formulate law based on experience in extreme cases and an element of perspective is required.

The majority of couples who separate resolve issues in relation to the welfare of their children themselves.  If that proves impossible they often consult solicitors and, in many cases, solutions are found through negotiation.  There are a small percentage of cases that require to be adjudicated by the court and of those there is an extremely small percentage where court orders are ignored and contempt issues arise.

It is often this latter category that obtains the most media attention.  A small proportion of fathers are prevented from having contact with their children.  A tiny proportion of mothers do not obey the court order and frustrate father’s rights to see their children.

In both Scotland and England parents have both parental rights and parental responsibilities. For those parents who do not have inherent parental rights they can be obtained through the courts. These rights and responsibilities require to be balanced. There are important principles at stake arising from this and the two most significant are:

1. Any decisions about children should be made in their best interests.
2. A child should have a meaningful relationship with both parents.

In the vast bulk of cases these two principles are not contradictory but there are a small number of cases where if a child were to have a meaningful relationship with a parent this would not be in their best interests. Examples might include if a parent is violent or has a severe addictive personality.

If there is a conflict between these two principles then it is the first principle that should prevail and the danger is that the proposals that are now emanating from the UK government appear to be giving precedence to the second principle.  This might benefit some parents but would not be in children’s best interests.

Alan Susskind is a Partner in Harper Macleod’s Family Department.

 

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