Update | Family: shared parenting

The Department for Education announced on 6 November 2012 that it proposes to introduce amendments to The Children Act 1989 to allow for a presumption of shared parenting. There will be a new section 1 (2A) inserted into the Act as follows:

'(2A) A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child's welfare.'

The restrictions upon the presumption will be elaborated in new sub-sections (6) and (7) as follows:

'(6) In subsection (2A) 'parent' means parent of the child concerned; and, for the purposes of that subsection, a parent of the child concerned '“

(a) is within this paragraph if that parent can be involved in the child's life in a way that does not put the child at risk of suffering harm; and

(b) is to be treated as being within paragraph (a) unless there is some evidence before the court in the particular proceedings to suggest ?that involvement of that parent in the child's life would put the child at risk ?of suffering harm whatever the form of the involvement.

(7) The circumstances referred to are that the court is considering whether to make an order under section 4(1)(c) or (2A) or 4ZA(1)(c) or (5) (parental responsibility of parent other than mother).'

In simplified terms this would mean that the courts' starting position would be that both parents should be involved in the raising of the child and that there would need to be a clear reason to have one of them not involved, e.g. the risk of harm to the child. The legal changes are likely to come into effect in 2013.
Courts will continue to apply the welfare principle and the general 'checklist' of factors will not change.

The draft clause also has an explanatory note:

'The purpose of this amendment is to reinforce the importance of children having an ongoing relationship with both parents after family separation, where that is safe, and in the child's best interests. The effect of this amendment is to require the court, in making decisions on contested section 8 orders, the contested variation or discharge of such orders, or the award or removal of parental responsibility, to presume that a child's welfare will be furthered by the involvement of each of the child's parents in his or her life, unless it can be shown such involvement would not in fact further the child's welfare.'

I have encountered this as a solicitor and even in this situation some form of contact was ordered by the court. A mother was threatening to physically attack the father and the child so it was ordered that contact should be indirect through letters three to four times a year where the letter was checked for suitability before being passed to the child.

I do volunteer work at a contact centre and have recently interviewed a mother. It was ordered at court that the father has supervised contact at a contact centre as there was a concern that the father may poison the child's food. In this case contact was supervised with no food being allowed to be given to the son from the father during contact.

Burden of Proof

With the new changes it will no longer ?be necessary for one of the parents to prove why contact and residence is in the child's best interests and the burden of proof will now be on the opposing parent to ?the application to detail reasons to rebut the presumption.

From my experience, shortly after separation emotions can run very high which may account for a parent to look to rebut the burden of proof, but, over time, both parents reach a business-like relationship for contact and residence arrangements so hopefully this new burden of proof will not create further litigation between the parties. If the separating parents work together this really can play a big part in the child's future positive development. I give each of my mediation clients a copy of the leaflet 'Kids In ?The Middle' which helps to explain ?this approach.

With legal aid in family law matters likely to be withdrawn next year for ?contact and residence matters, it is important that where both parents are minded to go to court and who may now be forced to act in person, do not feel that before they get to court it will be a case of 'winners and losers'.

If parents are properly advised before they go to court that there is now a presumption of shared parenting, this should encourage more couples to attempt family mediation to reach a balanced arrangement to decide where the children will live and how contact will work. I find these agreements are less likely to fall apart as the parents know their own commitments and the child's commitments and can then shape contact accordingly to suit these factors.

Also, if parents attend the Separated Parents Information Programme at the start of their separation rather than being ordered to attend the course at the end of a final hearing this may help them to agree contact and residence arrangements at an early stage rather than having a long and contested court hearing.

Contact time

The proposed changes do not state how much time the child should spend with each parent. This will be for the court to decide. From the couples I work with in mediation sessions it is very rare to get an actual split of 50/50 contact time. For cases where the baby is only a few months old the non-resident parent tends to have frequent and regular contact for a few hours as the baby needs to sleep and be fed but there are some examples where both parents live in close proximity and overnight contacts do happen for three-four nights a week where both parents are accustomed to caring for the child's daily and overnight needs.

When we are arranging contact for teenagers this is often done with children being part of the process (Direct Consultation with Children) as the teenagers are keen for parents to be aware that they sometimes want to be with their friends at the weekend or do sports activities to mix with their peers.

Where there is not a 50/50 split of contact time in the week, or where one parent lives abroad, then the non-resident parent tends to have more generous holiday contact time so that there is a nice balance in contact time. Skype is no substitute for direct contact, but this is increasingly forming part of contact arrangements where one parent lives abroad.

Other jurisdictions and views

Shared Parenting schemes have been introduced in Australia and Denmark but there are question marks as to how successful they have been. The Scottish legal system has a more modern approach which sets out a declaration of parental rights. Hopefully we can learn from what has worked and not worked in other jurisdictions when the new changes come in to force.

There are mixed views to the proposed changes being introduced.

The Law Society has said: ''The welfare of children must always come before the rights of parents and no legislation should create or point to a perception that there is an assumed parental right to substantially shared or equal time for both parents. ?While the government's intention to promote co-operative parenting is welcomed, legislation to promote shared parenting is not needed. Current legislation adequately provided the right framework for securing a child's welfare.''

Ken Sanderson, Chief Executive Office of Families Need Fathers has welcomed the announcement. 'This is a very positive move, and will help to ensure that as many children as possible can continue to benefit from a meaningful relationship with both parents following separation and divorce.'

The 'shared parenting' provision appears to be in line with what YouGov surveyed in June 2012. 84 per cent responded that both parents deserve equal custody rights and 85 per cent said fathers are instrumental to a child's life.

Shared care will now be a regular reminder to parents that the children were created by both parents and should not be brainwashed against a parent or be used to win points against their former partner.

It is hard to predict if this change will result in fewer children disagreements proceeding to court but it is hoped that parents will recognise and take on board the new presumptions and if disagreements do arise they will be settled by incurring fewer costs and using other options such as mediation which can generally offer a quicker timeframe to the court timetable.

Listing a matter at court from my experience can be around six weeks. Most mediation clients I see who reach agreement do this within a six week period.