Disputes over children are governed by the Children Act 1989, which was so revolutionary it took two years to come into force and is still very much misunderstood. It abolished terms such as "Custody" and "Access" and instead gave us ' Parental Responsibility:' effectively passing responsibility for children from lawyers and courts back to those best qualified to make decisions - their parents.
The Act encourages parents, who have split up, to make their own decisions about their children's welfare and only to come to court if there is a dispute that they cannot resolve themselves. Even then, courts will often refer parents to mediation and conciliation to help them make decisions by agreement wherever possible. The Legal Services Commission will also refer parents to mediation before granting Legal Aid. The systems vary across the country but the aim is the same, to help parents decide between themselves rather than have someone else decide for them.
However, where cases have to be decided by the Courts, the Judge or Magistrates are required by the Children Act to put the children’s interests first, and always encourage both parents to participate in the upbringing of their children. But the Courts are a clumsy mechanism for resolving such sensitive and difficult issues between battling parents, and often struggle to find a solution to problems which can be deep-seated and irreconcilable.
At the end of the day, the Act says, the welfare of the child is paramount.