Supporting Children when Parents Separate nine - The repeal of Section 41 of the Matrimonial Causes Act 1973 and related reforms: is the state turning a blind eye to the needs of children in divorce proceedings?
Published online by Cambridge University Press: 22 April 2022
Summary
Introduction
Section S.18 of the Children and Families Act 2014 repealed s41 of the Matrimonial Causes Act 1973. Generally known as the welfare check in undefended divorce cases where there were no accompanying applications for child-related orders, these provisions had required a district judge to scrutinise a Statement of Arrangements for all the dependent children of the family (set out in Form 4) in order to determine whether the court should exercise any of its powers under the Children Act 1989.
In addition, the 2014 act repealed the unimplemented s11 of the Family Law Act 1996, which would have amended s41 so as to require a divorce court to treat the child's welfare as the paramount consideration and to have regard to a checklist of factors, including the wishes and feelings of the child in light of his/her age and understanding. Thus Lowe and Douglas point out:
The 2014 reforms effectively deny children a voice in divorce proceedings. It can be seen as the ultimate adoption of the non-interventionist policy espoused by the Children Act 1989, which in turn has been said to rely upon the assumption that parents may be trusted, in most cases, to plan what is best for their children's future, and that where they are in agreement on this, it is unnecessary and potentially damaging for the State in the guise of the court to intervene.
Nevertheless, Lowe and Douglas observe that the 2014 reform, while it may be:
in line with the general policy of discouraging recourse to the courts in family matters … the signals sent out by the 2014 reform … run counter to the general trend of involving children more rather than less in proceedings that concern them.
Indeed, it might run counter to the provisions of Article 12 of the United Nations Convention on the Rights of the Child. Moreover, Lowe and Douglas point out that:
a parent wishing to apply for what is known as a Child Arrangement Order (previously specifying orders for residence or contact) must first attend a Mediation and Assessment meeting (MIAM) conducted by a mediator – in effect now a gatekeeper to the family justice system – except in cases where there are substantive allegations of domestic violence or child abuse.
- Type
- Chapter
- Information
- Supporting Children when Parents SeparateEmbedding a Crisis Intervention Approach within Family Justice, Education and Mental Health Policy, pp. 155 - 178Publisher: Bristol University PressPrint publication year: 2018