Shared Parenting – The proposals…

The topic of the government’s proposal to alter current legislation to reinforce the expectation that, where safe, children should have involvement with both parents formed a post of mine in May.

I am a little behind I’m afraid (hazards of life and work!)

Those of you who read my earlier post will know that my view was (and remains) that the Court and family law system as a whole already works from the starting point that children should have the benefit of a good quality relationship with both parents, where safe to do so. I remain of the view that messing around with current legislation is not necessary and, in fact, potentially more confusing for parents.

Nevertheless, there is now in place a consultation as regards options to achieve the government’s desired result – closing 5^th September 2012.

The governments preferred option is to “require the Court to work on the presumption that a child’s welfare is likely to be furthered through safe involvement with both parents – unless the evidence shows this not to be safe or in the child’s best interests.”

Other options are:

1.      to require the Courts to have regard to a principle that a child’s welfare is likely to be furthered through involvement with both parents.

2.      providing that the Court’s starting point in making decisions about children’s care is that a child’s welfare is likely to be furthered through involvement with both parents

3.      inserting, as an additional factor that the Court must consider, the further involvement of both parents.

In terms of the government’s preferred option, like I say, I know of no Judge or Solicitor who would presume otherwise and I don’t consider that any such amendment to expressly set out the presumption will alter the way in which the Court deals with these types of issues

…but how will this be construed by parents in the heat of court proceedings or separation – ultimately it is this that matters, it is clients and their views or perceptions that drive matters through Court. It isn’t beyond belief that in their minds the proposed presumption will relate to equal division of responsibility and, as part of that, time.

Already there have been comments made in the media that fuel such a thought process - “father’s to get equal access rights” being just one. However much the government makes it clear that equal time is not their focus, it will not be ministers trying to explain that to parents in Court.

The government’s argument for such amendment to legislation is that it will assist separating parents and will mean less cases reaching Court. There appears to have been little given to the fact that some 90% of separating couples never reach Court and the remaining 10% ordinarily involve multiple issues and problems.

How will introducing some starting point or presumption help those parents?  it is more likely to further entrench them against each other, leading to longer cases, more hostility and argument over what constitutes sufficient “involvement” with the child.

I have seen several cases where parties’ parenting styles have been different (neither worse nor better than the other but different) with one parent seeking at every opportunity to involve themselves when the children are with the other, criticising the other’s approach – where will the line be drawn?

Further, there appears to be little thought given to how the proposed presumption of “co-operative parenting” will be rebutted. How will the Court identify those cases in which the presumption should not apply? What guidelines are there to be?

Fundamentally, I wonder where the government’s evidence for the necessity of such amendments comes from. There is certainly a perception amongst some people that the Family Courts are biased in some way towards one parent but no evidence that that perception is based on fact. Where is the need for amendment?

Are we to legislate now just to remove or deal with people’s perceptions, however inaccurate they may be?

That will be next to impossible in Family law, where the Court’s quite rightly have wide discretion to act with the child’s welfare as their paramount consideration. Almost every case will see someone come away without all that they wanted and a “perception” that the Court has favoured the other – this seems to be despite all that the judges do to make it clear that their focus is the child.

One thing is clear, the government is set on this course irrespective of the views of Family law professionals or the conclusion of the Family Justice Review – we can only hope that, whichever option is chosen, clear information is given to parents to avoid further incorrect perceptions being formed.