Vardags Family Law Essay competition 2024/25 | 2nd Place

Critically discuss the current legal framework for child arrangements and child maintenance in England and Wales following parental separation.

Author: Amandeep Purewal – University of Warwick

Introduction

This essay evaluates the legal framework governing child arrangements and maintenance in England and Wales, focusing on the Children Act 1989 (1) and the Child Support Act 1991 (2). While designed to protect children’s welfare, these frameworks expose systemic issues, including domestic abuse, power imbalances, and societal biases. The essay critiques the presumption of parental involvement, challenges faced by non-biological parents, and flaws in the child maintenance system. It argues for reforms addressing coercive control and financial abuse to better safeguard children.

Child arrangement orders

The legal framework

Child arrangement orders (CAOs) are governed by The Children Act 1989, which aimed to modernise childcare law, enhance children’s rights, and address public concerns about state intervention. (3) Section 8 of the Act resolves disputes about living arrangements and parental contact, guided by the "welfare checklist" under Section 1(3). (4) 

This framework helps courts determine the child’s best interests, which is the paramount consideration. Additionally, Section 1(2A), introduced by The Children and Families Act 2014, establishes a presumption of parental involvement, requiring courts to assume that a child’s welfare is best served by both parents’ involvement, unless there is evidence to the contrary. (5) It is important to note, however, that this presumption does not equate to a presumption of direct contact but rather general involvement.

The judicial application of this presumption can create tensions, particularly in cases involving domestic abuse. Courts often operate within a "pro-contact" culture, heavily favouring parental involvement and requiring compelling evidence to deny contact. (6) While contact is generally framed as beneficial, this assumption can obscure circumstances where it may harm the child. The welfare checklist does consider harm under Section 1(3)(e), but it does not explicitly prioritise child safety, leaving this critical issue to judicial discretion. Although Practice Direction 12J requires courts to prioritise the child’s safety in cases involving domestic abuse, inconsistent application can perpetuate risks. This ambiguity may privilege parental rights over the obligation to protect children, exposing systemic gaps in the framework. (7)

Non-Biological Parents

Traditionally, child arrangement orders prioritised biological parent-child relationships, rooted in notions of ’natural’ bonds.(8) However, this approach has evolved, as seen in Re G, where the courts recognised the significance of non-biological parents. In this case, the children’s guardian report emphasised the vital role of the non-biological parent, and Thorpe LJ warned of the risks of marginalising that parent without a parental responsibility order. The court acknowledged the strong emotional and practical bond between the non-biological parent and the child as crucial to the child’s well-being.

This evolution reflects the growing recognition of diverse family dynamics, particularly in cases involving same-sex couples.(9) However, limitations persist. In Re B, Lord Kerr noted that a close, loving relationship alone does not grant legal rights without the proper order, underscoring the disparity between biological and non-biological parents.(10) Biological parents generally retain contact rights unless deemed harmful, while non-biological parents, even as primary caregivers, must establish their legal status through the courts.

Same-sex couples and non-biological parents without parental responsibility face greater challenges asserting contact rights than biological parents. Although English law has evolved, biases rooted in traditional notions of reproduction persist. While The Marriage (Same Sex Couples) Act 2013 (11) marked progress, cases like Wilkinson v Kitzinger (12) where a same-sex marriage performed in Canada was only recognised as a civil partnership in the UK, reflecting the legal system’s reluctance to fully embrace diverse family structures. Such limitations perpetuate biases that undermine same-sex couples’ rights, even in frameworks meant to prioritize child welfare.

Presumption of Parental Involvement

The presumption of parental involvement was further solidified with the introduction of the Children and Families Act 2014. Section 11 of the Act established the general principle that both parents should be involved in their child’s life, though direct contact is not always deemed necessary. This aimed to ensure that, where possible, both parents continue to play an active role in their children’s lives following separation.(13) This principle aligns with Article 9 of the UN Convention on the Rights of the Child, which supports maintaining personal relations with both parents unless contrary to the child’s best interests.”(14) Courts generally support this view and require cogent reasons to depart from it.(15)

Domestic Abuse and Child Arrangements

While prioritising contact with both parents is generally seen as beneficial, it becomes harmful when domestic abuse is not fully considered. Long-standing societal attitudes have often downplayed the significance of domestic abuse, with courts historically expecting a "good mother"—often a victim herself—to set aside her concerns for her child’s relationship with the father. In some cases, mothers raising domestic abuse allegations have been warned that doing so might portray them as "difficult”, thereby negatively affecting their case.(16) Judicial attitudes have frequently trivialised domestic abuse, framing it as irrelevant to parenting capabilities.

Wall LJ’s assertion that ‘we need to abandon the concept that a man can have a history of violence to the mother of his children but nonetheless be a good father’ reflects entrenched biases.(17) The emotional and psychological harm that domestic violence inflicts on children underscores the need to re-evaluate such attitudes. Studies reveal that children exposed to domestic violence face heightened risks of abuse themselves, with increased severity and prolonged exposure linked to worse developmental outcomes. (18) This is exemplified by an Australian study which revealed that over one-third of women who had suffered domestic violence reported that their children also experienced abuse.(19) The traumatic effects of exposure to domestic violence can lead to a variety of emotional, psychological, social, and behavioural reactions, with both immediate and long-term consequences. Greater exposure to violence is linked to poorer developmental outcomes for children, including challenges in learning and education.(20) These effects manifest in external behaviours such as aggression and defiance, as well as internal struggles like anxiety, depression, and low self-esteem.(21)

The courts have begun recognising these risks, as seen in Re L, V, M, H, where the Sturge/Glaser report highlighted that trauma from domestic violence can persist even after children are no longer directly exposed.(22) Similarly, in Re V, the court refused direct contact with a father who had been violent despite his claims of reform, recognising that forcing contact would exacerbate the child’s distress.(23) However, as Barnett’s research indicates, even after landmark cases and the introduction of Practice Directions, the focus on the perceived benefits of contact continues to overshadow the risks associated with domestic violence in all but the most extreme cases.(24)

Parental Alienation

The Family Court’s emphasis on parental alienation complicates domestic abuse cases, as it often oversimplifies the complex dynamics behind a child’s resistance to contact. A commonly employed tactic within the Family Court is "Deny, Attack, and Reverse Victim and Offender" (DARVO), where abusers accuse their victims of alienation to shift blame and further manipulate the legal process. By framing concerns about abuse as "alienation," perpetrators divert attention from their actions while asserting parental rights. Without a nuanced understanding of abuse dynamics, the Family Court may inadvertently become a platform for continued post-separation abuse, enabling perpetrators to harass victims through prolonged legal proceedings.(25)

The CAFCASS definition of alienation—"when a child’s resistance/hostility towards one parent is not justified and is the result of psychological manipulation by the other parent,” (26) is too narrow. It fails to account for situations where protective parents act out of genuine concern for the child’s safety. Research suggests that children’s resistance to an abusive parent can often be an act of self-preservation. Children exposed to abuse may struggle to differentiate between normal parenting and a toxic environment, leading to avoidance behaviours that reflect their trauma rather than manipulation by a protective parent. Recognising this distinction is vital to ensuring that protective parents are not unfairly labelled as alienators, and that the child’s safety and well-being remain the court’s primary concern.(27)

Child Maintenance

The Child Support Act 1991 and Current System

This section examines child maintenance arrangements under the Child Support Act 1991, focusing on calculation methods, criticisms of the system, and the financial and procedural challenges faced by both resident and non-resident parents.

CMS Fees and Low-Income Families

The Child Maintenance Service (CMS) oversees and collects maintenance payments but faces criticism for disproportionately impacting low-income families. Its Collect and Pay service, designed for parents unable to manage direct payments, guarantees payment but imposes significant fees.(28) The fee structure burdens both parents but disproportionately affects the receiving parent, reducing support for children and undermining the system’s goal of financial security post-separation.(29) For low-income households, fees consume a significant portion of maintenance payments, straining the receiving parent’s ability to meet basic needs and exacerbating financial instability. This perpetuates the very poverty the system aims to prevent.(30) CMS fees burden both parents, discouraging non-resident parents from engaging and fostering resentment that delays payments, worsening financial strain on the receiving parent. Consequently, rather than helping both parents and children, the CMS could unintentionally worsen the financial disparities between the two households.(31) The maintenance calculations overlook the resident parent’s income, creating a gap in the system. A more equitable approach would involve cost-sharing, with both parents contributing based on their financial capacities.(32) This model accounts for the child’s basic and overall needs, reflecting the parents’ standard of living. Costs should be divided proportionally based on both parents’ incomes, ensuring the child benefits from shared resources and comparable living standards.(33) This approach mitigates the risk of underestimating child-rearing costs or overestimating either parent’s capacity, addressing the current system’s overreliance on the non-resident parent’s income.(34) The current CMS framework heavily focuses on non-resident parents’ monetary contributions, overlooking the time and effort resident parents invest in daily childcare. This perpetuates gender bias, as resident parents, often women, receive no financial recognition for their contributions.(35)

Interconnection between Child Arrangements and Maintenance

The interplay between child arrangements and child maintenance highlights the connection between financial and emotional stability in separated families.

Financial Abuse Dynamics

In child maintenance arrangements, the non-resident parent—frequently the paying parent—often wields financial resources as a tool of control.(36) Patterns of domestic abuse, characterised by coercion and manipulation, can extend into financial negotiations. The CMS, despite its intent to provide financial stability, can inadvertently enable abusive behaviours such as withholding, delaying, or underpaying maintenance, or exploiting the process to cause distress for the resident parent.(37) This power imbalance can leave victims feeling trapped, turning financial support into another form of emotional or psychological abuse.(38)

While the non-resident parent is commonly assumed to be the abuser, financial abuse is a complex issue that can involve either parent.(39) Resident parents may manipulate the system by demanding excessive payments, using legal threats, or leveraging the child maintenance process as a form of control. These dynamics underscore the need for a balanced approach that addresses financial abuse holistically, recognising the potential for abusive behaviours on both sides.(40)

Gender Based Assumptions and Societal Limitations

Societal perceptions of domestic abuse are often shaped by traditional gender roles, which depict men as perpetrators and women as victims.(41) While this aligns with common abuse patterns, it overlooks the potential for coercive behaviour by resident mothers. Hearn’s concept of the "invisible perpetrator" highlights how societal norms can obscure abusive behaviours by individuals—such as resident mothers—who are not typically recognised as abusers.(42)

Mothers with primary custody may leverage children to control the non-resident parent, exploiting cultural assumptions of inherent nurturing and non-abusive behaviour.(43) This bias downplays abusive tactics by mothers, especially in child maintenance or access disputes, perpetuating stereotypes and hindering a full understanding of domestic abuse.

Conclusion

The legal frameworks governing child arrangements and maintenance aim to safeguard children’s welfare but expose significant gaps when viewed through the lens of domestic abuse and systemic biases. The presumption of parental involvement often overlooks risks in abusive dynamics, while the CMS can perpetuate financial imbalances and enable coercive control.

Addressing these issues requires a nuanced understanding of coercive control, financial abuse, and diverse family structures. By reforming these systems to prioritise safety and equity, the legal framework can better protect children and support healthier post-separation family dynamics.

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Footnotes

(1) The Children Act 1989

(2) The Child Support Act 1991

(3) Pilcher J and Wagg S, Thatcher’s Children? : Politics, Childhood and Society in the 1980s and 1990s (Falmer Press 1996) 30

(4) Children Act 1989, ss 1(3) and 8

(5) Children Act 1989, s 1(2A) (as amended by the Children and Families Act 2014)

(6) 6 Re C (Direct Contact: Suspension) [2011] EWCA Civ 521, [47] (Munby J)

(7) Featherstone B, Morris K and White S, ’A Marriage Made in Hell: Early Intervention Meets Child Protection’ (2014) 44(7) The British Journal of Social Work 1735

(8) J Fortin, ‘Re D (Care: Natural Parent Presumption) Is Blood Really Thicker Than Water?’ (1999) 11 Child and Family Law Quarterly 435, 437, 442

(9) Re G (Children) (Residence Order: Parental Responsibility) [2006] EWCA Civ 1

(10) Re B (A Child) [2013] UKSC 33

(11) The Marriage (Same Sex Couples) Act 2013

(12) Wilkinson v Kitzinger [2006] EWHC 2022 (Fam), [2006] 2 FLR 397

(13) Children and Families Act 2014, s 11

(14) UN Convention on the Rights of the Child, art 9

(15) Re W (Direct Contact) [2012] EWCA Civ 999, [39]; Re C (Direct Contact: Suspension) [2011] EWCA Civ 521, [47]; Re R (No Order for Contact: Appeal) [2014] EWCA Civ 1664, [16]

(16) Williams v Williams [1985] FLR 509 (CA); Re P (A Minor) (Contact) [1994] 2 FLR 374

(17) Children Act Sub-Committee, A Report to the Lord Chancellor on the Question of Parental Contact in Cases where there is Domestic Violence (TSO 2001)

(18) Thiara, R.K. and Harrison, C., ’Safe not Sorry: Supporting the Campaign for Safer Child Contact’ (Women’s Aid, 2016)

(19) Kaye M, Stubbs J and Tolmie J, ‘Domestic Violence and Child Contact Arrangements’ (2008) Legal Studies Research Paper 09/18, University of Sydney Law School

(20) Kitzmann, K.M., Gaylord, N.K., Holt, A.R. and Kenny, E.D., ’Child Witnesses to Domestic Violence: A Meta-Analytic View’ (2003) 28 Journal of Consulting and Clinical Psychology 339

(21) O’Keefe, M., ’Linking Marital Violence, Mother-Child/Father-Child Aggression and Child Behaviour Problems’ (1995) 10 Journal of Interpersonal Violence 3

(22) Re L, V, M, H (Contact: Domestic Violence) [2000] 2 FLR 334

(23) Ibid

(24) Barnett, A, ‘Contact at All Costs? Domestic Violence and Children’s Welfare’ (2014) 26 Child and Family Law Quarterly 439, 443

(25) Domestic Abuse Commissioner, Reluctance – Resistance – Refusal: A Child Centric Approach to Domestic Abuse in Private Family Law Proceedings (London: DAC, 2023)

(26) Re S (Parental Alienation: Cult) [2020] EWCA Civ 568

(27) Van der Kolk, B. A., The Body Keeps the Score (2014) Goldman J, et al, ’Children Exposed to Domestic Violence’ (2008)

(28) Child Poverty Action Group, The Impact of CMS Fees on Low-Income Families (2018)

(29) Ibid

(30) Ibid

(31) National Audit Office, Child Maintenance: A Report by the Comptroller and Auditor General (2017).

(32) Eekelaar J, Maclean M, and Beinart S, Family Lawyers: The Divorce Work of Solicitors (Hart Publishing 2000)

(33) Ibid

(34) Ibid

(35) 5 Graham S and Kelly J, The Invisible Work of Single Parents (2004)

(36) Harne L, Understanding Domestic Violence (2011)

(37) Morris A and O’Brien J, The Impact of the Child Maintenance Service on Families (2017)

(38) Ibid

(39) Sharp-Jeffs N, ‘A Review of Research and Policy on Financial Abuse within Intimate Partner Relationships’ (2015) London Metropolitan University

(40) Ibid

(41) Ganley AL, ’Understanding Domestic Violence’ in Improving the Health Care Response to Domestic Violence: A Resource Manual for Health Care Providers (Family Violence Prevention Fund 1995)

(42) Ibid

(43) Ibid

Table of Cases

1. Re G (Children) (Residence Order: Parental Responsibility) [2006] EWCA Civ 1
2. Wilkinson v Kitzinger [2006] EWHC 2022 (Fam), [2006] 2 FLR 397
3. Re C (Direct Contact: Suspension) [2011] EWCA Civ 521, [47] (Munby J)
4. Re B (A Child) [2013] UKSC 33
5. Re W (Direct Contact) [2012] EWCA Civ 999, [39] Re C (Direct Contact: Suspension) [2011] EWCA Civ 521, [47] Re R (No Order for Contact: Appeal) [2014] EWCA Civ 1664, [16]
6. Williams v Williams [1985] FLR 509 (CA) Re P (A Minor) (Contact) [1994] 2 FLR 374
7. Re L, V, M, H (Contact: Domestic Violence) [2000] 2 FLR 334
8. Re S (Parental Alienation: Cult) [2020] EWCA Civ 568

Table of Legislation

1. The Children Act 1989
2. The Children and Families Act 2014
3. United Nations Convention on the Rights of the Child
4. The Child Support Act 1991
5. The Marriage (Same Sex Couples) Act 2013

Bibliography

1. Barnett, A, ‘Contact at All Costs? Domestic Violence and Children’s Welfare’ (2014) 26 Child and Family Law Quarterly 439, 443
2. Children Act Sub-Committee, A Report to the Lord Chancellor on the Question of Parental Contact in Cases where there is Domestic Violence (TSO 2001)
3. Child Poverty Action Group, The Impact of CMS Fees on Low-Income Families (2018)
4. Domestic Abuse Commissioner, Reluctance – Resistance – Refusal: A Child Centric Approach to Domestic Abuse in Private Family Law Proceedings (London: DAC, 2023)
5. Eekelaar J, Maclean M, and Beinart S, Family Lawyers: The Divorce Work of Solicitors (Hart Publishing 2000)
6. Featherstone B, Morris K and White S, ‘A Marriage Made in Hell: Early Intervention Meets Child Protection’ (2014) 44(7) The British Journal of Social Work 1735
7. Ganley AL, ’Understanding Domestic Violence’ in Improving the Health Care Response to Domestic Violence: A Resource Manual for Health Care Providers (Family Violence Prevention Fund 1995)
8. Graham S and Kelly J, The Invisible Work of Single Parents (2004)
9. Harne L, Understanding Domestic Violence (2011)
10. Fortin, J, ‘Re D (Care: Natural Parent Presumption) Is Blood Really Thicker Than Water?’ (1999) 11 Child and Family Law Quarterly 435, 437, 442
11. Kaye M, Stubbs J and Tolmie J, ‘Domestic Violence and Child Contact Arrangements’ (2008) Legal Studies Research Paper 09/18, University of Sydney Law School
12. Kitzmann, K.M., Gaylord, N.K., Holt, A.R. and Kenny, E.D., ‘Child Witnesses to Domestic Violence: A Meta-Analytic View’ (2003) 28 Journal of Consulting and Clinical Psychology 339
13. Morris A and O’Brien J, The Impact of the Child Maintenance Service on Families (2017)
14. O’Keefe, M., ‘Linking Marital Violence, Mother-Child/Father-Child Aggression and Child Behaviour Problems’ (1995) 10 Journal of Interpersonal Violence 3
15. National Audit Office, Child Maintenance: A Report by the Comptroller and Auditor General (2017)
16. Pilcher J and Wagg S, Thatcher’s Children? Politics, Childhood and Society in the 1980s and 1990s (Falmer Press 1996) 30
17. Sharp-Jeffs N, ‘A Review of Research and Policy on Financial Abuse within Intimate Partner Relationships’ (2015) London Metropolitan University
18. Thiara, R.K. and Harrison, C., Safe not Sorry: Supporting the Campaign for Safer Child Contact (Women’s Aid, 2016)
19. Van der Kolk, B. A., The Body Keeps the Score (2014)
20. Goldman J, et al, ‘Children Exposed to Domestic Violence’ (2008)