Family Law

Eighth edition

by Kate Standley

Updates for Chapter 11: Children on family breakdown

May 2014 update

11.1 Introduction

(For changes to the Children Act 1989, see also the changes referred to in Chapter 10).

11.1 (vii) Shared parenting

Section 12 of the Children and Families Act 2014 amends section 8(1) of the Children Act 1989 to replace contact and residence orders with a ‘child arrangements order’ in order to promote the notion of shared parenting. Section 11 of that Act has also inserted a presumption of parental involvement into section 1 of the Children Act 1989, although there is not as yet a commencement date for this provision.

11.3 The duty to children in divorce and civil partnership dissolution proceedings

Section 17 of the Children and Families Act 2014 has repealed section 41 of the Matrimonial Causes Act 1973 and the civil partnership equivalent in section 63 of the Civil Partnership Act 2004 (which required the court to consider on divorce and dissolution whether to exercise its powers under the Children Act 1989 in regard to any arrangements which have been made, or are proposed to be made, for the upbringing and welfare of ‘relevant’ children). Consequently, it is no longer necessary for the parties to a divorce or dissolution to file a Statement of Arrangements for Children (Form D8A).

11.4 Residence disputes

11.4 (c) Shared residence orders (section 11(4))

Making a shared residence order as a means of acquiring parental responsibility

The following case illustrates the tension between the legal position and the biological reality when a child is born as result of egg donation in the context of a same-sex relationship:

11.5 Contact disputes

11.5 (c) (i) Contact as a right of the child

The importance of a child having contact with a genetic parent

In Re SAB (A Child) [2014] EWHC 384 (Fam) Holman J held that it was in the best interests of the child, who resided with his mother and her civil partner, to have contact with his genetic father. He reiterated established authority that even somebody who had agreed to be a ‘mere’ sperm donor, unless anonymous, should not necessarily be excluded from the life of the resulting child.

Contact should not be prevented unless the circumstances of the case are exceptional

The following case shows how, despite the best effort of all the professionals involved in intractable contact disputes, sometimes there is nothing more that can be done:

11.5 (d) (i) Types of contact

Contact and violent parents supervised contact

In M (Children) [2013] EWCA Civ 1147 the Court of Appeal allowed a violent father’s appeal against an order refusing him unsupervised contact with his three sons (aged 7, 5 and 3). An order that there should be no contact between a child and his non-residential parent was held to be ‘draconian’ and could only be lawful within the meaning of art. 8(2) ECHR if it was necessary in a democratic society for the protection of the rights of the mother, and the minor children in her care, to grow up free from harm. In order to reach that conclusion the court must consider and discard all reasonable and available avenues which may otherwise promote the children’s rights to respect for family life, including, if in the interests of promoting their welfare during minority, supervised contact with their discredited father.

11.6 Enforcing and facilitating contact

11.6 (b) (iii) Transfer residence to the other parent

In Re H (Children) [2014] EWCA Civ 733 the Court of Appeal refused to grant the mother leave to appeal against a change of interim residence orders in respect of her three sons. MacFarlane LJ held that such an interventionist step was proportionate to the need to safeguard the children's welfare on an interim basis as it was supported by evidence that the mother had emotionally manipulated the children.

11.8 Relocation on family breakdown

11.8 (b) International relocation applications

The relevant principles governing relocation applications, recently summarised by Mostyn J in Re TC v. JC (Children: Relocation) [2013] EWHC 292 (Fam), guided the Court of Appeal in the following case:

Further reading and references

Eekelaar J, ‘Family justice on trial: Re A’ [2014] Fam Law 473.
Hunt J, ‘Shared parenting time: messages from research’ [2014] Fam Law 676.
Kaganas F, ‘A presumption that ‘involvement’ of both parents is best: deciphering law’s messages’ [2013] CFLQ 270.
Trinder L, ‘Climate change? The multiple trajectories of shared care law, policy and social practices’ [2014] CFLQ 30.




January 2014 update

(See also the changes referred to Chapter 10 on the Children Act 1989.)

Statistics on parents and family breakdown

According to statistics from the National Centre for Social Research (NatCen) (www.natcen.ac.uk), published in 2013, one in eight UK fathers who are divorced or who have separated from their partners have no contact with their children. Nearly one million fathers do not live with their children; and nearly 130,000 of these fathers have no contact with their children. Fathers who have married again, or who have begun a new relationship, are twice as likely to lose contact with their children. The research also indicated that 97 per cent of resident parents who continued to live with their children following divorce or separation were women. The study was based on an analysis of data from the British Social Attitudes Survey.

11.5 Contact disputes - Introduction

11.5(a)(i) Human rights and contact

In A (A Child) [2013] EWCA Civ 1104 the Court of Appeal ordered a rehearing after 12 years of litigation and 82 court orders. The father was appealing against a contact order which restricted him to sending his daughter emails and presents at Christmas and on her birthday. McFarlane LJ, giving the lead judgment, concluded: ‘I am sufficiently concerned about the process of these proceedings as a whole, which I have held has violated the art. 8 rights of both M and her father, and also by the deficits in the judge's analysis which I have now identified, to conclude, in the words of CPR, r 52(11)(3), that the outcome is 'unjust because of a serious procedural or other irregularity'.’

11.5(c) How the courts exercises its discretion in contact cases

Contact should not be prevented unless the circumstances of the case are exceptional

The following case provides a useful example of the courts’ approach to contact:
But each case depends on its own facts, and in W (Children) [2013] EWCA Civ 335 the father’s appeal against a ruling that he was to have no direct contact with his child was dismissed because the mother had serious anxieties about the impact of contact on the child, even though they were not objectively justified. However, the father’s appeal against the refusal to grant him parental responsibility was allowed. McFarlane LJ said that in cases where there was no direct contact with young children, applications for parental responsibility had to be looked at carefully and the parental responsibility application should be given greater prominence than in a more straightforward case. Referring to observations he had made in Re W (Direct Contact) [2013] 1 FLR 494, he stressed that both parents had responsibilities to see whether there was a way in which the child could be brought up to have a favourable view of the father. He commented that at the core of the case was a problem of human relationships, not easily resolved or ameliorated in a courtroom.

11.6 Enforcing and facilitating contact

Research on the enforcement of contact

A report by LIz Trinder et al, Enforcing contact orders: problem-solving or punishment? published the results of research on the enforcement of contact. The study was sponsored by the Nuffield Foundation. For a Briefing Paper on the key points of the research, see http://www.nuffieldfoundation.org/sites/default/files/files/enforcement%20briefing%20paper%20final.pdf

11.7 Changing a child’s surname on family breakdown

The following cases concerned, among other things, the issue of changing a child’s surname:
A change of surname was permitted in the following case due to the father’s behaviour
A similar decision was reached in A v. D (Parental Responsibility) [2013] EWHC 2963 (Fam) where it was held that a change of name would reduce the chance of the father ascertaining the child and the mother's whereabouts. Given the level of risk, the welfare balanced tipped in favour of allowing the change of name to protect the integrity of the child’s home and the mother's care of him.

11.8 Relocation on family breakdown

11.8(b) International relocations

Rob George of Oxford University has released preliminary results from his research into relocation applications. The research shows that one-third of all applications for the international relocation of children are refused by family courts. Just under 67 per cent of applications to take children abroad following divorce or separation are approved, according to the study. An interesting finding is that the courts are significantly more likely to approve relocation applications if the child has never stayed overnight at the home of the non-resident parent.

A recent case on international relocation

For a recent case involving a mother’s application for permission to permanently relocate with her two young children to Australia, see Re TC v. JC (Children: Relocation) [2013] EWHC 292 (Fam) in which Mostyn J which provides a useful overview of the relevant law and a clear summary of the relevant principles. He also refers to Kacem v. Bashir [2010] MZSC 112, a recent judgment in the New Zealand Supreme Court which Mostyn J says has ‘some highly acute observations demonstrating the fallacy of the suggestion that there is, or should be, some kind of presumption in favour of an application to relocate’.


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