In the time of King Solomon two women came to him to seek his wisdom over which one of them should have custody of a single living baby. Unable to decide, Solomon calls for a servant to come and cut the baby in half so that each woman might have an equal share of it. Does the UK government’s proposed new legislation creating a presumption of ‘shared parenting’ within the Children’s Act 1989 risk splitting the baby in such a way that goes against what is in the child’s best interests?
For some years now, it has been argued by fathers and other groups that that there is a prejudice in the family courts against placing children with fathers. It is suggested that this has led to approximately one in three children of divorced parents living with fathers absent from their lives.
In June 2012, the coalition government set out plans to amend the Children Act 1989 to enshrine in law the presumption that there should be ‘shared parenting’ of children in situations of family breakdown and divorce.
The government’s decision to push ahead with this legislation has caused some consternation in legal circles as it goes against the findings of the Family Justice Review panel, which published a report in November 2011, suggesting that enshrining a presumption of ‘shared parenting’ into law could lead to disastrous results for children in residence disputes.
The panel’s conclusions were based largely on experiences in Australia, where similar legislation introducing a presumption of ‘equal parenting’ was introduced in 2006. This Australian legislation led to a marked increase in legislation from parents making equal-time applications and resulted in severe delays in child care cases.
The concept of ‘shared parenting’ currently has no legal status in the UK but is generally understood to refer to an equal division of time with each parent. Current estimates suggest that 3% of separated parents in the UK make arrangements to share childcare more or less equally but usually there is one parent who has primary responsibility for child care.
A number of charities working with parents have come out to argue that legislation intending to create a presumption of ‘equal’ or ‘shared’ parenting does not necessarily result in a child establishing a meaningful relationship with both parents. A number of studies in this area have found that the quality of contact is more important than the frequency of contact.
It is often argued by non-resident parents that an equal split of time between parents is fairer for the child, however, studies have shown that frequent moves between households creates both practical and emotional difficulties for children. Practically, sharing care for children on a 50-50 basis or thereabouts means children having two residences that they move between on a weekly/bi-weekly basis/half a week at each.
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) coming into effect on 1 April 2013 will remove the option of legal aid for parents seeking ‘contact’ and or ‘residence’ orders. This may result in one parent being prevented from seeking continued involvement in their child’s life when mediation breaks down. This will cause frustrations if ‘shared parenting’ legislation has the effect of giving parents unrealistic expectations as to their rights to time with their children, which they are the in practice unable to pursue through legal representation. If those parents then represent themselves, this is likely to cause further delays to the process.
The Law Society argue that ensuring that a child maintains a meaningful relationship with both parents is already a factor in the court’s decision making process and that there is no evidence that family courts are biased towards mothers in making care arrangements.
As the law currently stands, the paramount consideration when determining care and upbringing is the welfare of the child. A new presumption within the law that requires the family courts to attempt to ensure that both parents have equal opportunity to take responsibility and have time with their child may undermine the current paramount consideration and risks cutting the baby in half in order to satisfy the needs of the parents.
At Hanne & Co, we have been assisting divorcing and separating couples for over 100 years and our lawyers have extensive experience in representing mothers, fathers and children in family proceedings. We believe that maintaining a meaningful relationship with both parents, except in the most serious of cases, is beneficial for a child’s welfare. Please give one of our specialists a call if you would like to discuss any matters to do with child care arrangements, divorce or separation and we would be happy to try and assist you.
By Child Care Solicitor Michael Brierley and Family Law Paralegal Rachel Cooper .
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