116.  The Constitutional Affairs Committee recommended an amendment to the "welfare checklist" in the Children Act 1989 to ensure that the courts have regard to the importance of sustaining a relationship between the children and a non-resident parent. That Committee argued: "Such an amendment would send a clear message to the courts, to parents and to their professional advisers about the importance of maintaining links between both parents and their children".[96]

117.  Several of our witnesses agreed with this recommendation. For example, in response to a question about whether this should be included in the checklist, Mr Kirk of the FLBA told us:

"I think at the moment we tend to take that as taken for read, but there is certainly no harm in spelling it out there, right at the very front of the Children Act."[97]

118.  However, the Ministers raised the following concerns:

"There is a reference already to parents in there. If you put in a further reference saying that it would be a good idea for non-resident parents to have access, I think you would be muddying the waters. It is the usual argument about muddying the waters over the paramountcy of the interests of the child."[98]

"we had quite a debate when we were producing the Green Paper about whether it was useful to write into statute what was already in the common law, because the common law position... is absolutely clear that, except with very clear evidence to the contrary, it is in the child's best interest to have a meaningful relationship with both [parents]. For that reason, we did not think that there was any real benefit in putting it into statute."[99]

119.  The reference to parents in the welfare checklist is in section 1(3)(f), which provides that a court shall have regard to "how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs".

120.  The Ministers' second argument, that the addition would only reflect current practice, seems to contradict the first, that it would muddy the waters. On balance, we conclude that it would be useful to have in statute what is already considered sound practice by the courts.

121.  We endorse the recommendation of the Constitutional Affairs Committee that an amendment should be made to the 'welfare checklist' in the Children Act 1989 to ensure that the courts have regard to the importance of sustaining a relationship between the children and the non-resident parent.

97   Q 17 [Mr Kirk] Back

98   Q 330 [Margaret Hodge] Back

99   Q 330 [Lord Filkin] Back