Shared Parenting – Necessary changes?

The Queen’s speech announced the plan for a new Children and Families Bill and, amongst other reforms, the government’s plan to change the law in such a way that it will ensure that, where it is safe and in the child’s best interests, both parents are able to have a relationship with their children after they separate.

The media has billed this as:

“father-friendly access arrangements following relationship breakups” – guardian

“Fathers look set to be given additional rights to see their children after family break-up or divorce” - Independent

Ken Sanderson, chief executive of the charity Families Need Fathers, said the plans would “send a clear message” that children need “the full involvement of two loving parents in their lives”.

I’m left asking myself whether (a) the fact that children require or at the very least do much better with the full involvement of two loving parents has ever been in question and (b) whether it has been suggested in recent times by the public, the legal community, the judiciary or the government that the idea that children should have an ongoing relationship with both parents on separation or divorce, where it is safe and in their best interests is flawed?

Certainly I am aware that the public perception of such matters is that mothers are somehow favoured over fathers and that not enough emphasis is placed on a child’s relationship with both parents. My experience, having dealt with such issues for some significant time is that case law in this area is very clear about the importance of children maintaining a good quality, close relationship with both parents on separation, where it safe for the child and in the child’s best interests, and for parents to play a full role.

Tim Loughton, the Children’s Minister, said “We need to clarify and restore public confidence that the courts properly recognise the joint nature of parenting,”. The public perception has not gone unnoticed by the government, whatever the reality – I will hold back my views that this proposed “change” to legislation – yet to be clarified – will be a popular one with the public, however unnecessary, and one that they will be hoping may help stem the red tide that we saw at recent local levels.

The legislation at present, and long-established, provides for the child’s welfare to be the court’s paramount consideration in determining such cases and sets out certain factors called the “welfare checklist” (non-exhaustive) that the Court must have regard to when making decisions. It appears agreed all round that the child’s welfare should remain paramount and I hope that whatever the detail of any proposed changes that this remains undiluted.

As well as the principle that a child’s welfare is paramount, current legislation deals with “Parental Responsibility”, defined as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property..” It allows for involvement in the child’s upbringing and in major long term issues for the child.

Father’s married to the child’s mother will have PR by virtue of their marriage and, since late 2003, unmarried father’s named on the child’s birth certificate will also have PR. Case law suggests that those fathers who do not have PR for whatever reason, will have it granted by Court Order on application.

Save for specific mention of the element of time that a child spends with both parents, you could be forgiven for thinking that PR provides exactly what the government is suggesting, full involvement in the child’s life after separation.

However, quite what the public’s knowledge is of PR and what rights and powers it confers is unclear. The Norgrove review did recommend that the government find means of strengthening the importance of a good understanding of parental responsibility in information it gives to parents.

Quite apart from the apparent lack of understanding about PR, the perception of some sort of unfairness or bias towards one parent over the other in cases concerning children has not been helped by the jargon/vocabulary that has developed. The concepts of “Residence” and “Contact”, whilst much better than the previous terms of “custody” and “access” still cause difficulty for parents, them seeing the parent with “Residence” as somehow in a superior position. The Court does not use Residence and Contact to distinguish one parent over the other in any way but as a way of identifying the arrangements for the child.

There is legislation in any event to enable the Court to deal with any concern – the Shared Residence Order. These orders don’t necessarily reflect an equal division of time but have been made where the Court has sought to reflect that the 2 different homes offered equal status and importance, where a sole residence order may have been misinterpreted by one of the parents as allowing more control or where it would be psychologically of benefit to the child or parents. In other words, to send a message to the parents that neither has the upper hand and that both are of equal importance to the child and their upbringing – the Court recognising the joint nature of parenting.

The Norgrove review of family law last year warned against introducing a legal presumption in favour of shared parenting, warning that it could pose an “unacceptable risk of damage to children”. The thinking behind this recommendation was that such a presumption may encourage parents to feel that children should spend equal time with each of them and this was borne out by the framework that has been in Australia since 2006 (that children should have a “meaningful relationship” with both parents) having led to increased litigation and the word “meaningful” being applied to the time a child spends with each parent.

It is with some concern that I note phrases such as “father friendly access” and “father’s additional rights” being used in the media so soon after the Queen’s speech – I can well foresee difficulties ahead if the media is insistent on speaking about parenting and arrangements for children in terms centred on parents’ “rights”.

The Court, in my view, already has as its starting point that a child should have a full and on-going relationship with both parents, where it is safe and in the child’s best interests. It has at its disposal a range of orders that may be made under the current legislation to give effect to that principle.

In my experience, those disputes around child arrangements that end up before the Court are hostile and frequently parents are entrenched in their views early on – often one fearing that they are going to be marginalised in their child’s life.

And yet, I would be concerned if there was to be any suggestion that the starting point for children should be equality of time with both parents – although I acknowledge that this is not even what the government are saying at this stage (despite what the media might suggest).

It is rare that dividing time on a week by week basis or 3 days and 4 days a week between parents is in a child’s best interests. I would be concerned about an increase in litigation and, more particularly, an increase in the bitterness of litigation if the public perception was that equality of time was the starting point.

I think this issue would be better dealt with by putting in more support services for separating parents and by educating parents on separation about PR and the Court's approach but I would hope that, if changes are made to the existing legislation, they are carefully thought through and worded to avoid misinterpretation and the possibility for increased argument over the time that children spend with each parent.

In addition, given the lack of real understanding about PR, despite this principle having been around for some time, I would hope that any changes are explained fully to the public so that there is no confusion or expectation by parents that goes beyond the changes made.

Ultimately, if this does not happen, I can foresee increased appeals and a continued perception (however incorrect) that the Court does not recognise shared parenting – exactly what the government is trying to eliminate.

The consultation on the proposed bill will commence shortly and no doubt interested parties from all angles will have their say. I hope that amid all the forthcoming negotiations and posturing that we don’t lose focus on those who will be affected most– the children.