Proposed Legislation on Shared Parenting – A Response

Following my blog last month The Queen’s Speech – Changes in Family Law, the Government has now published their consultation document for the proposals:

“Co-operative Parenting Following Family Separation: Proposed Legislation on the Involvement of Both Parent’s in a Child’s Life”

The stated aim of the legislation is “to reinforce the expectation generally that both parents are jointly responsible for their children’s upbringing” and the Government believes that children should benefit from the continued involvement of both their parents “where it is safe and in their best interests”.

The family court makes decisions regarding children based upon the principle that the child’s welfare is paramount. The presumption is that both parents will have an active role in the child’s upbringing but this is not specifically written down in law. The Government believes that this leads to a perception that the law does not recognise the dual role that both parents have.

The new legislation will place a statutory duty on the court to consider the benefit to a child of having a continued relationship with both parents. Alongside this, the court will still consider other factors affecting the child’s welfare and such welfare will remain the court’s paramount consideration in making decisions.

Four proposals have been put forward to amend the legislation to meet the proposals, the Government’s preferred option being:

The court will 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 is not to be safe or in the child’s best interests.

The consultation goes on to explain that the above presumption will only apply to a parent who can be involved in a way that does not pose a risk to the child’s safety. This will apply both in situations where a parent poses no risk to the child and also where the involvement (ie indirect or supervised contact arrangements) poses no risk. The court will be able to ignore the presumption if it feels that the parent’s involvement is not consistent with the child’s welfare.

Early reaction to the proposals has been mixed. Some family law solicitors, including myself, have pointed out how the proposals for change already actually exist in practice. I don’t see any difference being made whether or not the principal is laid down in statute because the court will still need to address allegations or evidence of risk if they become a factor in the case.

Within the consultation, the Government highlight the perception of bias which is inbuilt in the current system. The argument is that a statutory provision for shared parenting will eradicate this perception of bias. Father’s groups in particular, as it is more often than not fathers who perceive bias in favour of mothers in the family courts, will no doubt be pleased about the proposals.

The Government specifically state that:

This legislative change is categorically not about equality in the time that a child spends with each parent after separation. There is no intention that equal time, or indeed any prescribed notion of an ‘appropriate’ division of time, should be the starting point of the court’s considerations.

From my own experience, I fear that this will be the result of this kind of law. I think there is a real danger that parents will adopt an unreasonable and unrealistic expectation to physically “share” the children. If shared parenting is enshrined in statute, what will be the result in perceptions of the family court when it doesn’t happen?

In my opinion, shared parenting as a concept is a good idea for the family courts. However, the reality is that it already exists and there is abundant case law to demonstrate this. To enshrine such a concept in legislation may serve only to raise expectations unnecessarily and perhaps even exacerbate the frustrations towards the family court.

Judges are experienced in judging: each case is considered on its merits and where the welfare of the child is paramount – clearly in the majority of cases that will involve them having as full a relationship as possible with both of their separated parents.

Interestingly, I note that the consultation document places strong focus on two things: the need for greater regard to mediation (that the change in law will lead to a reduction in cases going to court); and the avoidance of a perception of bias. I question both whether the government is more motivated by the need for a reduction in costs spent on the courts, and by the desire to “pacify” a loud and persuasive dissenting voice (father’s groups).

This looks like another example of government introducing a new law which changes very little at all. Is this the best use of Parliament?

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