Should the law in relation to contact and residence orders be amended to include a presumption that children should live with their genetic parents, unless their welfare positively demands otherwise?
There has been much debate to the law in relation to contact and residence and whether there should be a presumption that children should live with their genetic parents unless their welfare positively demands otherwise. This essay will look at the advantages and disadvantages on whether the child’s best interest lies on being with their genetic parent or not. The children act 1989 has been put in place for the protection and welfare of the child(s). When considering the child(s) welfare, section 1 of the act states that the children(s) welfare is the courts paramount consideration. The court also uses the welfare checklist, which comes under s.1 (3) of the children act 1989, in order to determine that the child(s) best interests are being kept priority.
The courts have to regard the welfare checklist, the checklist must consider the child’s wishes and feelings, his physical, emotional and educational needs, the likely effect of any change in his circumstances, his age, sex, background and any characteristics of which the court considers relevant, any harm which he has suffered or is at risk of suffering, how capable each of the parents are or another person whom the court considers is of standards of meeting his needs and the range of powers available to the court under this act in the proceedings in question. A residence order is an order that settles the arrangements to be made as to the person with whom a child is to live and can be joint or shared as shown in the case D v D (shared residence orders) 1 FLR 495 where the father applied for a joint residence order however the mother sought a change in the contact pattern but the trial judge accepted the fathers case and made a shared residence order the judge dismissed the mother’s application and ordered her to pay the costs of the hearing. The reason for this decision was due to the fact that the father had shown he had the children’s best interest.
A contact order is an order which requires the person with whom a child lives, to allow that child to have contact with the person named in the order for example in the case of Re W, the mother terminated the fathers contact to the child, W. The father sought a contact order but the mother said she would rather go to prison than allow contact. The father appealed and the courts said they cannot be put into a position of having to balance this against a party’s disobedience to its orders. A child has the fundamental right to have contact with both parents, unless circumstances allow otherwise. The law in relation to contact and residence is based on the child’s best interest and not the parents’ wishes. The courts would prefer if the parents voluntarily agree to what is best for child rather than court settlements as they are more likely to be adhered to.
When deciding a child’s welfare in court, it is important to consider the welfare checklist while taking the child’s wishes and interest into account and also considering the situation between both parties, it can be a difficult decision because it can affect a child greatly if their life becomes unbalanced, a responsibility which lies with the judge. In the case of Re G, Thorpe LJ “accepts the propositions that the identity of a child’s natural (biological) parent is always a matter of significance and that in each case the weight to be given to the blood relationship will depend upon the matter in issue, the identity of the parties and the courts assessment of all other factors in the welfare checklist.” Although being the biological parent has a small significance in deciding the outcome for a child’s future, Thorpe LJ also puts emphasis on the welfare checklist, the parties interests in the child and what is best suited for the child’s interest and wishes.
For example in this case the biological parent, CG wanted to move with the children to Cornwall with her current partner, however it was advised by The Children and Family Court Advisory and Support Service (CAFCASS) that it was not in the children’s best interest to move them away from their current location, which the children were happy and settled with. Also by moving it would interfere with their relationship with CW, CAFCASS believed CG only wanted to move to aggravate the current contact arrangements with CW, Baroness hale of Richmond agreed with what the support service said. Hallett LJ believes in the biological link when considering cases on residency and contact, she states that a genetic parent is “both a biological and psychological parent “she places greater significance on ‘blood ties’, an opinion also shown in Re K which believes it is in the interests of the child that it shall remain with its natural parents, this does not always allow for the child’s interest to be thought of, as the natural parent may not be ready to take responsibility for full time care of a child.
However it is important that the judge(s) involved do not become biased to one party which is what was demonstrated in Re G according to Mr Peter Jackson QC who believed that the judge expressed her disapproval of the mother and her behaviour from considering the children’s welfare. According to the 1986 review of child law: custody, it was discussed whether there should be some presumption in favour for biological parents, the commission said ‘We conclude, therefore that the welfare of each child in the family should continue to be the paramount consideration…’ it is important that the natural parent can meet their emotional needs as well as other facts such as a child’s sense of identity, but the welfare of the child should override any other factors, such as the parents/guardians wishes, whether they are biologically linked to the child or not. So if another party is more capable of meeting the requirements of the welfare checklist than the biological parents, then the child should have contact and residency with the other party who is able to meet their needs.
For example in the case of Re B, where they look at the question of whether a biological parent would provide ‘good enough’ parenting, where a 3 year old child had lived and been cared for by his grandmother throughout his life, as the mother had left when the child was 6 months old. The justices initially agreed that the child should live in the care of his grandmother, when the mother applied for residence; however the court of appeal reversed this decision on the grounds that it is in the child’s best interest to be bought up by his biological parents but the House of Lords reversed the court of appeals decision on the grounds that the Court of Appeal put significant weight on preserving the status quo and not of the child’s welfare which should be the courts paramount decision. The child had grown up in the care of his grandmother and was used to the routine that he was being bought up in, disturbing the balance that the child has could be upsetting for him, and could cause him a great deal of stress.
What the courts should have done was to allow contact between both parents and the child and so the child could familiarise himself with them and build a relationship with them, but he should not be taken away from the care of his grandmother, his friends or family and his nursery/education as this could affect the child’s development while growing up. In cases such as Re B, it can be worrying that judge’s may overlook the welfare checklist in order to place a child with its natural parent as they believe it is in the child’s best interest being bought up with their biological parent. However this is not always the best case as it can affect a child psychologically if removed from their primary location and taken away from their primary carer to which they have created a bond with and removing a child from their comfort zone may create problems when they enter adulthood.
On the other hand Lord Templeman in his judgement for the case of Re KD stated “the best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health are not endangered.” but what Lord Templeman does not take into account is the psychological parent, the parent who is not blood related to the child but has formed an attachment to the child and helped in the child’s upbringing, it seems that some judges put more weight onto maintaining the status quo. However a child does need their natural parent or psychological parent to develop as a person.
As Fahlberg said on his attachment theory that “neither blood ties to the child nor sex of the primary caretaker seems to be as important as the relationship this person has to the child” . So a mother or father figure or both are needed for a child’s development, it is not always necessary that the parent be natural as a psychological parent has a natural bond with the child. A child needs a secure attachment to a parent to promote emotional, intellectual and social development. If a child has formed a bond with their natural parent(s) and the child is then separated from their parent(s) it can be very distressing for a child. A child can differentiate between a parent figure, someone they feel secure with, and other adults. Bowlby claimed that children being separated from their parent(s) “can affect a child psychologically when they grow up; a child’s need for their mother is unsatisfied, and the frustration and longing could send them frantic with grief.” Sending a child into depression so early in their life is not safe for their mental and physical health.
They could then lose their trust for the world and for other people by not having the parent that they long for. A judge needs to take into account the psychological harm they could be doing if they remove a child from their mother or father figure. It can have a huge impact on the child if removed from their biological parent, stress, anger and prolonged crying makes it a traumatic experience for them. Judges often assume that the effect of separation on younger children will be temporary as a child does not understand the situation and they cannot express their feelings with words. A psychiatric report that was produced in the case of Re W stated that a child removed from a strong bong will show a bereavement reaction which could be extremely severe and could lead to long lasting problems where it could handicap their ability to form lasting relationships later in life. However the judge, Butler Sloss LJ, followed the psychiatric evidence that was given by another psychiatrist who gave more significance to the sense of identity a child needs from their natural parent.
The expert opinion also believed that is easier for a younger child to move between carers than it is for an older child; however the first psychiatrist recommended that a decision to move the child should be postponed till the child would understand the reasons for it. It seems that the judge placed greater significance to the child ‘genetic link than the child’s actual welfare, it also seems that she may have put her own opinion on where the child should go, as she preferred the second opinion which was in favour of granting a residency order for the mother rather than thinking where the child’s best interest lay. Another case that puts more significance on the genetic link is the case of Re W. In this case the judge let the genetic link override the child’s welfare. The case involved a 7 year old boy who had lived with his maternal grandparents for three years as his mother did not want to carry on looking after him, this caused the child problems as he became emotionally deprived and disturbed. The grandparents had helped the child become settled and happy and the child was fine.
The father put forward a residency order for the child, however the child clearly stated he wanted to stay with his grandparents and it was clear the child was thriving in their care so it would seem obvious to allow a contact order but to allow the child to stay with his grandparent. However the judge gave residence to the father as he could not find any reason to why he shouldn’t be bought up by his father, but the checklist suggested otherwise. Ten members of the public were asked to fill in a questionnaire which contained different scenarios with relation to residence and contact; it contained different scenarios such as one partner in a gay partnership wanting custody of the child but the father of the child also wanting custody of the child. The results of the questionnaire showed that 78% would describe person x as the child’s mother or father, with very few giving another name to person x but names that were given were, biological father, step father or mother, live in parent and surrogate baby.
This shows that the people questioned can differentiate between a natural parent and a psychological parent but believe that they are still a parent to the child. 41% of the people questioned believed that the genetic link is one factor that should be considered along with the welfare checklist, whereas 40% believed that the genetic link is not important when deciding a child’s welfare. Most of the people share a similar view about whether a genetic link should be considered or the welfare checklist should be the courts only support.
Lastly when the scenario was slightly changed, the answers given were similar but instead 43% said that the genetic link is not important when considering a child’s welfare. Some of the comments that were given varied with some saying that the child matters so they’re wishes should be met; some said that the primary carer should have care as they have helped the child develop. But to conclude it seems a majority of the people that were asked believe that genetics do play a role when considering a child’s welfare, as well as the other half who say that genetics should not be considered when considering a child’s welfare.
Courtney from Study Moose
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