Family Law Reform

Overview

The purpose of this consultation is to invite your views on proposals to reform family law concerning parental responsibility, which refers to the legal rights, duties, powers and responsibilities that a parent has in relation to a child. The proposals are intended to provide enhanced protection for children and victims in circumstances involving serious criminal offending.

The Minister of Finance has announced his intention to bring forward legislation to strengthen protections for children affected by the most serious forms of offending. This includes consideration of reforms similar to "Jade's Law" in England and Wales, which addresses the exercise of parental responsibility following the unlawful killing of a child's other parent. The consultation also seeks views on whether legislative intervention may be appropriate in other categories of serious offending  that may affect the welfare, protection and upbringing of children.

The consultation has also been informed by a number of tragic domestic homicide cases in this jurisdiction in recent years, together with representations from affected families, victims' organisations, elected representatives and campaigners who have called for reform of the law. These stakeholders have raised concerns that surviving family members may be required to undertake further legal proceedings to address issues of parental responsibility and parental decision-making at a time of profound grief and trauma.

At present, decisions concerning parental responsibility and child contact are determined by the Family Court on a case-by-case basis. The law provides the courts with extensive powers to regulate parental responsibility and child arrangements where this is necessary to protect the welfare of a child. However, these powers generally require a separate application to be made which can be contested by the other parent and remains dependent upon judicial determination in each individual case.

Increasing attention has focused on whether certain categories of offending are so serious that a more structured statutory response may be required. Particular concerns have been raised regarding situations where:

• one parent murders or unlawfully kills the other parent;
• there is extended serious violence by one parent to the other parent;
• a child is conceived through rape;
• a parent has been convicted of other serious sexual offences against children; or
• a child has suffered severe abuse or serious harm.

Any future legislative proposals will be guided by the welfare and best interests of children, informed by consultation responses, and developed in a manner that is proportionate, and consistent with human rights and equality obligations.

Respondents should consider each question in light of the policy proposals set out in Chapters 4 and 5 of the Consultation. Chapter 4 sets out the principal policy approaches to reform, while Chapter 5 examines the detailed proposals and potential mechanisms through which they could operate. Responses should be informed by these chapters as well as the overarching principles set out below:

• the welfare and best interests of the child;
• reducing burdens on victims and families;
• ensuring appropriate consequences for serious offending;
• maintaining judicial oversight;
• proportionality; and
• clarity and consistency in the law.