Mothers and fathers have no presumption to shared parenting

A new legal provision, contained within the Children and Families Act 2014, will impact on all separating couples with children.

Clause 11 of the Act, which comes into force today, requires courts making child arrangement orders, to presume unless otherwise shown, that the involvement of both separating parents in the life of a child will further its welfare.

The Shared Parenting Consortium, a group of children's organisations and academics led by Coram Children's Legal Centre (CCLC), campaigned to ensure clause 11 did not undermine section 1 of the Children Act 1989, which requires the child's welfare to be the court's paramount consideration when reaching decisions on their upbringing.

The consortium was successful and an amendment was inserted to make clear that 'parental involvement' does not mean 'shared parenting', and there is no presumption parents will 'share' their children on a 50/50 basis.

The amendment makes clear that 'parental involvement' is defined as 'involvement of some kind, either direct or indirect, but not any particular division of a child's time'.

CCLC's director of international programmes and research, professor Carolyn Hamilton, commented: "It is essential that the best interests of the child remain paramount in all decisions affecting children. Decisions about where a child should live and how much the child should see each parent should be made in accordance with the child's best interests and not on the basis of parental rights."

Professor Hamilton continued: "We campaigned hard for a definition of 'parental involvement' to be included in the Act so that it was clear to separating parents that neither mothers nor fathers are entitled to a legally binding presumption of shared parenting. Ninety per cent of cases relating to contact are settled out of court, so this amendment is crucial. It will make it clear on the face of the Act that the welfare of children remains paramount."

Practitioner reservation

While the initial amendment was welcomed by fathers' groups, many family lawyers professed reservations as to its inclusion. Julia Thackray, former head of family at Penningtons and now the family programme director at Central Law Training, explained there was 'anxiety' the amendments would cause more arguments about its meaning, particularly with more litigants in person attending the courts.

"In practice, the courts have been making decisions on the basis that both parents' involvement is in a child's best interests unless there is some reason to suggest otherwise. That is very much woven into the advice that parents get and the court decisions that are made. So the point was, for many lawyers, that this may not be needed as it largely reflected current practice," said Thackray.

She continued: "The welfare checklist in section 1 of the Children Act 1989 contains the fundamental premise around which decisions should be made 'when a court determines any question with respect to - the upbringing of a child…the child's welfare shall be the court's paramount consideration'. The introduction of a 'presumption' about parental involvement risked skewing the way decisions were made. How do you balance the welfare principle - an approach that takes everything into account in the particular circumstances of a case - with a framework in which a particular outcome is already prioritised? Nevertheless, it was clear that an overt statement about the importance of parental involvement was widely welcomed and this led to the proposal that the current clarification about 'time spent' be introduced."

Speaking of the amendments earlier this year, Baroness Butler-Sloss commented: "The groups of parents whom I worry about in relation to clause 11 are those who try to settle the arrangements for the children without going to court. In the absence of lawyers to advise either side, the stronger, more dominant parent may insist on an arrangement based on equality, or at least on disproportion which is not appropriate for the welfare of the children.

"I also worry about those who would go to court with an erroneous view of what this clause actually means, and with an inbuilt sense of their rights rather than the best arrangements for the children. The purpose of this amendment is to give some clarity to the clause and to help the public come to terms with putting the welfare of their children first."

John van der Luit-Drummond is legal reporter for Solicitors Journal