Court needs to catch up

There was much in the media last week about the consultation published on 13 June proposing to establish the notion of ’shared ­parenting’. The concept is anything but new. Back in July 2010 a bill to provide for the making of shared ­parenting orders had its first reading in the House of Commons, although it failed to complete its passage through Parliament.

Closer examination of the consultation paper reveals shared parenting actually means that the right of both parents to see their children will be enshrined in law. Again, nothing new. In most cases it is in the child’s best interests to have an ongoing ­relationship with both parents. The Children Act 1989 already makes the welfare of the child a priority. The concepts of custody and access were, contrary to many media reports and soap operas, abolished by the 1989 act.

Family practitioners know that the real problem faced by the system is what to do with parents who will not comply with orders. Again, initial reading of the consultation points to reform. New proposals suggest that parents who do not comply will be banned from travelling abroad, ­driving or even leaving their homes in the evening.

At first glance these may seem ­impressive, but the reality is that the courts already have far greater power. They can change the residence of children.

What could be worse than losing residency of your children due to a failure to allow them to see the other parent and finding that they will be living with the other parent as a result? The current reluctance to change residence if it will be too ­distressing for the children will apply to the new measures as well. The other parent will not want to be ’blamed’ for the children missing a holiday or evening activity.

In my experience the threat to change residence can persuade ­implacably hostile parents to comply with contact orders. The practical problem is that, because our court system is so slow, it takes many months before an order is made, breached and there is a further hearing to deal with the non-compliance. By this point it may be detrimental to the children to change residence because they have been so influenced as to become implacably hostile to the involuntarily absent parent.

What parents and children in these situations need and deserve is a system that enables cases to be dealt with quickly and for judges to take a hands-on approach and manage cases properly where it is apparent that there is going to be a problem ­enforcing orders. Experienced family practitioners and judges can tell which cases these will be. The current system does not enable them to be fast-tracked or managed judicially. The current delay in some courts ­obtaining Children and Family Court Advisory and Support Service reports as to what is in the child’s best interests is 14-16 weeks, and even then this time period can be extended if there is a shortage of staff or ill-health (as often happens).

This is too long in the life of a young child and can be heartbreaking for the parent who is being ­deprived of the relationship.