The reforms under the CFA 2014: Legislative presumption

The Children & Families Act 2014 (CFA 2014), s. 11 has amended the Children’s Act 1989 (CA 1989), s.1 by inserting sub section (2A), which provides the presumption that unless the contrary is proved, maintaining relationship with parents after separation is in the child’s best interests. This is explained by the viewpoint that in Private law, children benefit from a relationship with both parents post separation”. The reforms made under the CFA 2014 are in accordance with the UN Convention on Rights of Child, Article 9, which provides that children shall not be separated from parents against their will, except when it is in their best interest that such separation should take place. It is pertinent to note that presumptions have always played an important role in interpreting the welfare of children under the Children Act 1989 as well, although courts have made a move away from generalisations and preferred to apply the welfare principle to each individual case. However, the principle that child benefits from the society of both his parents was reiterated in a recent case where the court observed on the importance of contact between parent and child as a fundamental element of family life and in the interest of the child, creating a positive obligation on the state and therefore upon the judge, to take measures to maintain or to restore contact.

The changes brought by CFA 2014 make it a statutory duty for the court to presume that the maintenance of relationship between parent and child is in the best interest of the child. The notion of best interest of child is important to consider within the English law, as well as the ECHR and UNCRC. The general view is that the principle of ‘best interest’ demands that decision makers must focus on achieving the best outcome for the child while at the same time weighing the best interest of the child as against the other interests. Therefore, the question of balancing the interests of the child with that of the parent may also arise in cases where separation is required between the parent and child.

UNCRC 1989, Article 3(1) requires children’s ‘best interests’ to be ‘a primary consideration’ in actions concerning them. Under the CA 1989, s.1 requires welfare to be a paramount consideration. The paramount consideration has also been considered to be the ‘sole consideration’ by the courts, where the rights of the parents was considered only to the point where such rights contributed to the best interests of the child. By applying the paramountcy principle, a court could deny the right of access for a parent to their child.

The paramountcy of the children’s interests have also been addressed in the European Court of Human Rights (ECtHR) as the notion of paramountcy conflicts with the ECHR, Article 8 rights of family of the parents and children. In R v United Kingdom, the ECtHR held that parental rights of access to children exist independently from the best interests of children, thereby opening a door for the balancing of the interests. However, the ECtHR approach by and large has been that of upholding the paramountcy of children’s interest when any balancing is required as between the interests of the child and that of the parent. In that context, the paramountcy approach has been similar for both English courts as well as the ECtHR.

The decision in J v C led to the inclusion of s.34 in the CA 1989, which provides for the presumption of reasonable contact between a child in care and his family. The UNCRC 1989 emphasises on the child’s right to contact with parents under Article 9. In certain cases, where the child is in the care of authority, CA 1989, s.34(1) also requires that the authority must allow reasonable contact between a child in its care and his parents (s. 34(1)(a) to (d)). The parent can make an application for a contact order under s.34(1)(c). The court would have consideration to the effect that the contact with parent may have on the best interests of this child and for this the previous history of relations between the child and parent may be considered by the court. In case, the court orders establishment of contact, the Local Authority must give effect to the order as soon as possible.

The child arrangement orders under CA 1989, s.8 (1) (a) (b) can include “prohibited steps order”, which requires that steps involving parental responsibility cannot be taken without the consent of the court; and “specific issue order” which gives directions for the purpose of determining specific questions in connection with any aspect of parental responsibility for a child.

S. 10 of the CFA 2014 now provides for compulsory mediation information and assessment meeting (MIAM) in order to give an opportunity to parents to make their own child arrangements amicably. MIAM is a statutory requirement to fulfil before making a relevant family application to the court. This provision ensures that the decisions with respect to parental access to children is amicably settled as between the parents, so that the best interest of the child is also ensured. It is also pertinent to note that mediation is considered to be a ‘best setting’ within which the voice of the child can be heard, and this is associated with the presumption under the UNCRC as well as the Children Act 1989, that the worth and significance of the views and feelings of the children need to be acknowledged so as to alleviate feelings of distress that the child goes through during separation or divorce of parents.

The Children Act 1989 provides for a ‘welfare checklist’, which is a range of considerations that the court must have regard to while deciding questions relating to the upbringing of the child. The checklist is contained in s.1 of the Act and the specific considerations to be made by the court are provided under s.1(3) (a) to (g) and can be summarised as follows. The first consideration relates to the ascertainable wishes and feelings of the child concerned. Here, the age and understanding of the child must also be considered. In M v M (Custody appeal), the order of the lower court granting interim custody to the mother was set aside by the Court of Appeal because the judge failed to take into consideration the persistent opposition of the 12 year old girl to living with her mother.

The second consideration relates to the physical, emotional and educational needs of the child. In Re K ( Residence Order: Securing Contact), the court ordered custody for the child to be with the father who was employed and refused custody for the mother who was unemployed having consideration to the needs of the child.

The third consideration is to the likely effect on the child of any change in his circumstances. In B v B (Custody), the Court of Appeal refused to give custody to a mother who had walked out leaving her 2-year-old child with father, and who had looked after the child.

The fourth consideration is to the age, sex, background and any relevant characteristics of the child, which the court may consider with regard to welfare of the child. In Re T (Custody: religious upbringing), the Court of Appeal set aside the earlier order of the lower court denying custody to the mother as she had joined the Jehovah's Witnesses, subject to a condition that she would permit blood transfusions for the children if necessary.

The fifth consideration relates to any harm which child has suffered or is at risk of suffering. Harm may be physical, emotional or any other harm. In L v L (Child abuse: access), the judge awarded custody to mother and supervised access to father of their five year old daughter. There was a finding that the father had abused the daughter, therefore, supervised access was provided. Access was not completely denied because the child seemed to be attached to her father and had shown herself to be well adjusted socially.

The sixth consideration relates to capacity of parents to meet their responsibilities of meeting the needs of the child. This may be related to responsibilities that are economic or social or emotional. In B v B (Custody &c), the mother was granted custody of her two year old son when she went to live with her lesbian partner as the judge ruled that the mother’s sexuality would not come in the way of her meeting her responsibilities as a parent.

The final consideration is the range of powers available to the court. Here, the court may consider the best interest of the child for the purpose of making orders that even the parent may not have sought.