New joint parenting laws are not just unnecessary, they are dangerous

Last week the government proposed to amend the Children Act 1989 to recognise the joint nature of parenting. According to children's minister ?Tim Loughton, the proposals are 'about reinforcing society's expectation that mothers and fathers should be jointly responsible for their children's upbringing' where it is safe and in the child's best interests. He stresses this 'is categorically not about giving parents equal right to time with their children'.

These statements are laudable and at first glance uncontentious, but on closer inspection they are confusing '“ what does the minister envisage when he says both parents should be jointly responsible for their children's upbringing?

There are so many factors involved in raising a child '“ love, time, commitment, decision making on their behalf and teaching moral and ethical standards to name just a few. These factors can of course only be jointly met if both parents have contact with the child, so the minister seems to be saying that a child should have contact with both parents after separation and that the parents should make joint decisions about the child's upbringing.

There is already a widely held belief among the public that a child automatically lives with the mother and many will undoubtedly interpret the minister's words as a move towards joint parenting. In turn this will be interpreted as equal parenting despite the minister's statement that it is not.

The intention behind the sentiment needs to be clear but would further legislation help achieve the desired aim?

A complex framework

The Children Act 1989 provides the legislative framework regarding questions ?relating to a child's upbringing and section 1(1) of the Act states that the child's welfare shall be the court's paramount ?consideration in determining such questions. The Act is therefore child, not parent, focused, with decisions made on the basis of what is considered to be in the child's best interests taking into account the well known checklist at section 1(3).

It is accepted that unless there are welfare issues such as risk of harm then it is in a child's best interests to have contact with both parents after they separate. The overwhelming majority of contact cases result in contact orders being made in favour of the non-resident parent although the person in whose favour the order has been made may feel the level of contact is inadequate and therefore feel in some way marginalised.

The Act therefore deals with the question of contact arrangements and it is difficult to see what positive benefit further legislation would bring. Any new legislation would almost certainly seek to change the emphasis from the current child-focused approach to one focusing more on the parental right to contact with the child. This would not only potentially conflict with section 1(1) but also assume that there must be a minimum level of contact that is acceptable even though this may not be an equal division.

The Act also introduced the concept of parental responsibility (PR) which is defined at section 3(1) as 'all the rights, duties, powers, responsibilities and authority' which a parent has in relation to the child. The Act deliberately does not further define the scope of PR to avoid any list from constantly changing to meet differing needs and circumstances, but in practice relates to the fundamental aspects of a child's upbringing such as, but not limited to, the child's name, choice of religious and cultural upbringing and choice of school. It is important to remember that a mother automatically has PR but a father needs to acquire it. However, even if both parents have PR for a child, the Act states each of them may act alone and without the other in meeting that responsibility (section 2(7)) although case law has ?established that in certain circumstances consultation must occur. Regardless of whether a father does or does not have PR, in the event of a dispute, either party can make an application to the court that would be dealt with on the basis of what is considered to be in the child's best interests.

In other words, parents can already take joint responsibility for their child's upbringing and the legislation is already in place for the court to decide if they disagree. Parents will agree or disagree but either way they are taking responsibility for their child's upbringing.

The Act is clear and simple and focuses on the child's best interests. Adding to it would restrict the flexibility it currently offers to deal with the unique nature of each dispute that occurs. This would inevitably cause confusion and also create 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.

The focus should be more on tackling the difficulties in enforcing contact orders to ensure both parents have the chance to take joint responsibility.