Law will confer right to see children after splitting up, but lawyers warn changes 'will clog up the courts'

The right of both divorced fathers and mothers to see their children is to be enshrined in law for the first time as part of changes to family justice, despite warnings from the government's independent review and lawyers that it would "clog the courts".

In a consultation paper the government will propose amending the law to explicitly recognise the importance of children having a relationship with both parents after separation.

According to the government, studies show that following a divorce, 90% of children reside "mainly" with one of their parents – with just 12% of these children living with their father. This "bias", say Whitehall sources, needs to be corrected.

Under the four options proposed by the government, family courts will have a legal duty to ensure that parents have a continuing relationship with their children if a marriage breaks down – because a "child's welfare is likely to be furthered".

Ministers point to a 2008 study which claimed children with "highly-involved dads develop better friendships, more empathy and higher levels of educational achievement and self-esteem.

They are also less likely to become involved with crime or substance abuse".

Earlier this year ministers had rejected the advice from the economist David Norgrove, who chaired an independent official review into family justice, and warned of the situation in Australia after the country introduced "shared parenting" rights. A series of legal claims and counter-claims led to severe delays in child custody cases.

But ministers say its draft clauses will not lead to the courts having to apportion "equal time" or "defining the nature" of parental relationship – both cited as reasons why the law failed in Australia.

Leading lawyers said that "once in legislation you could end up with more cases clogging up the courts".

Matt Bryant of Resolution, which represents 6,000 family lawyers said: "Amending the law will allow people to appeal. It's really not needed as judges already take into account these factors.

"The key will be to ensure that child's welfare comes first, and that by enshrining something in legislation – as has happened in other countries – the government run the risk of placing the demands of parents over those of the children."

Children's charities backed this view. The NSPCC said it did not support the need for fresh legislation.

"The importance of children having a meaningful relationship with both parents is already fully recognised by the judiciary and all those working within the family justice system," it said.

"If the government does take this legislation forwards the primary focus must remain on the paramountcy principle (putting the child's best interests first) as stated in the Children Act 1989.

"They must be sure that it will not create unintended consequences such as more parents fighting battles in the courts or the focus being on the rights of the parents and not the child."

Deputy prime minister Nick Clegg said: "Both parents have a responsibility and a role to play in their children's upbringing and we want to make sure that, when parents separate, the law recognises that. Children should have the benefit of contact with both of their parents through an ongoing relationship with them.

"This is why we are publishing proposals today setting out that, where it is safe and in the child's best interest, the law is clear that both parents share responsibility in their upbringing."

Labour said that the government's approach will sow "confusion in the courts".

Lisa Nandy, the shadow children's minister, said: "In reality one of the biggest problems for children is delay in the courts. Instead of producing greater clarity, there is a serious risk the government's proposals will cause greater confusion, more litigation and delay which isn't in anyone's interests, least of all children's."

"It is surprising the government has pressed ahead, against the advice of its own advisor, when similar approaches have worked against children's interests when tried abroad.

"Children's best interests should be the paramount consideration in decisions affecting them. That principle has been clear in law for over two decades. Ministers should think very carefully before they decide to weaken it."