Ministers outline four options for amendments to the Children Act
Family lawyers have attacked government plans for the introduction of legislation on shared parenting, describing it as unnecessary and warning that it could raise false expectations.
Although David Norgrove in his family justice review recommended that a shared parenting right should not be enshrined in law, the government announced in February that it would go ahead with a “legislative statement” on the importance of shared parenting.
The Department of Education and MoJ today set out four options, with draft wording, for amendments to the Children Act 1989.
The first, the government’s preferred option, would require courts to work on the presumption that a child’s welfare was likely to be furthered through involvement with both parents.
The new subsection would state that “the court is to presume, unless the contrary is shown, that the welfare of the child concerned will be furthered by involvement in the child’s upbringing of each parent of the child who can be involved in a way not adverse to the child’s safety”.
The other options would require the courts to “have regard to” a principle that the child’s welfare would be furthered through shared parenting, introduce shared parenting as a ‘starting point’ for the courts or make shared parenting an additional factor for the courts to consider.
Nigel Shepherd, law reform spokesman for Resolution, said there was no need to put into legislation what was already happening in practice.
“The presumption that both parents should be involved is effectively the position on the ground now. There is no need to put it into legislation. The danger is that it takes away from the principle that the child’s interests should be paramount.”
Shepherd said the introduction of a shared parenting principle in Australia, referred to in the Norgrove report, had raised expectations that time would be shared between the parents, even though it was made clear that this was not the case.
“How can these nuanced alternatives have any real impact on what happens on the ground?” he asked.
Stuart Ruff, associate at Thomas Eggar, agreed that it was difficult to see what further legislation would add to that which was already in place.
“The likely outcome of further legislation would be to provide confusion and unrealistic expectations which in all probability will lead to further court hearings in a system that is already under pressure, causing greater delay which cannot be in a child’s best interests.”
John Wotton, president of the Law Society, said introducing a legislative presumption of shared parenting could lead to unrealistic expectations from fathers, with a huge rise in fathers asking the courts for equal time with the children.
“This could undermine the government’s drive towards mediation and out-of-court settlements,” Wotton said.
“The primary focus should be on the rights and welfare of the children, not those of parents. The principle that the welfare of the child is the court’s paramount consideration should be maintained.”
Wotton went on: “The current legislation does not favour one parent over another, but seeks to ensure that arrangements following breakdown are based on the best interests of the child.”
However, the society welcomed the government’s plans for more effective sanctions to enforce breaches of court orders relating to contact.
In the consultation paper, the government said it was considering extending enforcement powers to mirror those used for enforcing payment of child maintenance.
This would allow courts to withold passports and driving licences as well as impose curfew orders.