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Shared Parenting - information on proposed changes to the law - after separation

Tags: shared parenting, child contact arrangements, separated parents, after separation
Content Types: Legal

If you are currently separating from your partner you may have heard about government plans to make changes to the current law by introducing what’s called <strong>‘a presumption of ‘shared parenting’</strong>. What is intended by this shared parenting bill review, as some are referring to it, may not be clear to you. Some parents are  confused about how it could affect them and their children if they go through the courts. To help clear up the confusion, this month on we explain some of the background behind the shared parenting laws and the  public consultation from the government on whether to change the law to include this ‘presumption’.

Why change?

When the Coalition government came to power, the Conservatives said they would conduct a review of family law and part of this would be to encourage shared parenting after parting. The result of this review was the publication of a substantial report called the Family Justice Review which was published last November.

The review looked in detail at "shared parenting" both what happens here in the UK and at lessons that could be learnt from abroad too. One key question being, should the current law be changed to include this sometimes confusing phrase ‘a presumption of shared parenting’?

What does ‘a presumption of shared parenting’ really mean?

Any changes only affect parents who involve the courts – currently this is a small percentage of the total number of couples who separate ….around 10%

"Shared parenting" in legal terms usually means there will be a ‘presumption’ that when parents separate children should spend an equal or nearly equal amount of time with both parents … a 50-50 split. This seems straightforward enough; of course a child needs an on-going relationship with both parents and time is clearly a factor in maintaining close bonds. But where this area of the law has become difficult is because some parents hold the idea of this only being possible if the child spends a 50-50 amount of time with each parent.

But research and learning from countries such as Australia where the law was changed have shown that introducing a presumption of “shared parenting” into law could cause more problems than it solves. It shifts the focus of the court’s decision-making away from what is in the best interests of a child, to focussing more on what parents want: who the child lives with and rigid contact arrangements. The result is that parents who already find it hard to sort their issues out often end up in long drawn out battles about their <strong>‘right’</strong> to 50% rather than thinking about the quality of time and what’s best for their child. In many cases, a 50:50 share of a child’s time puts unnecessary and significant stress on them.

A further problem with a presumption of shared time is that it fails to recognise that all families are different and organise support after separation in their own ways. It doesn’t look at ways in which extended family members, particularly grandparents, play an active and really valuable role in a child’s upbringing.

While it may be the case that for some children, shared parenting arrangements will be in their best interests, this will not always be the case. Decisions relating to a child’s living arrangements should be made on a case by case basis, looking at what is best for this child rather than a one size fits all.

In Australia the introduction of shared parenting resulted in increased litigation so parents and children were being subjected to longer drawn out battles in court which are clearly damaging to adults and children alike. Something the UK government are keen to avoid.  There was more focus on fathers’ rights over children’s best interests. Indeed it was so problematic that additional legislation had to be introduced to deal with child protection and safety issues.

UK researchers and legal experts all agree that children will benefit from a meaningful relationship with both parents after separation where this is safe. But that changing the law is not the way to achieve this.

For more advice on shared parenting keep an eye on our monthly Live Chat sessions as they are regularly hosted by lawyers who can answer queries relating to such issues.

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  • User-anonymous Bruno_Ditri Flag

    I’ve just been fiddling with the zoom function of the SatNav on my new car.

    I zoomed right out and managed to get the whole of Western Europe on the screen. This wasn’t particularly helpful in assisting me with my 1 mile journey to the local shops!

    Incidently, as a man, I feel compelled to use the SatNav for each and every journey, even short, familiar routes I could probably drive blind-folded!

    Anyway, while I was fiddling, it made me think about the Children and Families Bill, and about the need to ‘zoom out’ for perspective.

    There has, of course, always been a direct link between societal norms and legislation.

    Most significant shifts in societal norms have led to changes in legislation, but this has usually involved a tough struggle!

    Anti-discrimination legislation for people of different race, gender and sexual orientation all eventually followed in the wake of changes in society.

    However, in each case, the resistance from what I shall call ‘the forces of conservatism’ was powerful. There were significant vested interests in the status quo, and those who stood to lose out were not going to accept change without a fight!

    In each case, honourable campaigners for justice and reform were discredited, undermined, attacked and even murdered.

    Martin Luther King Jr’s letter from Birmingham Gaol touches my heart each and every time I read it. It is the quintessential call of any person facing discrimination and demanding justice.

    Now, I perfectly accept that Matt O’Connor of ‘Fathers 4 Justice’ is NO Martin Luther King Jr!

    However, his argument for justice for children is, in my view, Righteous. It is Good. It is Honourable.

    A child surely deserves to enjoy the love, care and guidance of two good and responsible natural parents.

    The ideology of parenthood of the 1960′s and 70′s saw the mother as the ‘natural’ carer and the father as the ‘natural’ financial provider. Family legislation reflected this ideology.

    Of course, societal norms have now changed. In 21st century Britain, BOTH genders are now viewed as natural carers and financial providers.

    Has legislation fully caught up with this societal change? No.

    Do fathers face systematic gender discrimination? Yes.

    Is this discrimination indirectly perpetrated via the legal constructs of ‘primary carer’ and ‘non-primary carer’? Yes.

    I am a good, responsible and conscientious parent. I know I am, because a judge found me to be so!

    And yet I was forced to endure two periods of separation from my beautiful children: firstly for 8 months and subsequently for 1.5 years.

    I now see my children once a month in a motel room in Eastern Europe.

    Any genuine ‘meaningful involvement’ in my children’s lives has been significantly undermined.

    I am not alone in my experience.

    There are thousands of perfectly good and caring British parents (mainly fathers) who face similar discrimination.

    To the “discrimination deniers”, to those who seek to preserve their vested interests in the status quo, and to those who are simply unaware of the discrimination, I say, think of that child, think of what he is missing, think of what you might say to him if he asked you why he couldn’t see his dad.

    Let us open our hearts and our minds.

    Let family legislation reflect modern parenthood.

    Let us support Tim Loughton MP and his shared parenting legislation in the Children and Families Bill.

    Bruno D’Itri

    Sun 3, Mar 2013 at 11:40pm
  • User-anonymous Bruno_Ditri Flag

    I am very pleased that our Government is set to amend the Children Act in order to protect the Right of a child to benefit from a meaningful relationship with both its parents, post separation/divorce.

    This was an original intention of the Children Act (1989), but has been relegated or misinterpreted by the judiciary (specifically by Lady Butler-Sloss).

    I have campaigned vigorously over recent years for the acceptance of the principle that a child’s paramount interests are served by the Court giving due regard to maintaining its meaningful relationship with both its parents.

    Sadly, to date, the judiciary has remained more focused upon the wishes and feelings of the so-called ‘primary carer’ (usually mum) and has relegated the importance of the involvement of the de-facto ‘secondary carer’ (usually dad).

    There have been well-publicised cases in which the judiciary has recognised this shortcoming in the law, but has been unable or unwilling to act.

    The forthright High Court judge, Sir Paul Coleridge has spoken of his powerlessness to prevent good fathers being excluded from the lives of their children.

    In the reserved judgment of Re D (Children) [2010] EWCA Civ 50, the former President of the Family Division, Sir Nicholas Wall broadcast (and later reiterated in a Family Affairs interview) his carefully considered view that Relocation Law – in the form of Payne v Payne – ascribed too great a weight to the wishes of the primary carer and relegated the harm done to a child due to the loss of its meaningful relationship with the left-behind parent. Regardless of his concerns, however, he proceeded to apply the very legal principles in Payne v Payne which he had criticised. Wall was unwilling to challenge a legal precedent which failed to serve the best interests of the children in that case.

    With the forthcoming amendment to the Children Act, the judiciary will now be obliged to give due and proper weight to maintaining meaningful relationships between children and both their parents.

    Following the new legislation, it is very hard to see how the principles of Payne v Payne can survive. Plainly, a child which has been removed thousands of miles from its home country cannot easily benefit from maintaining a meaningful relationship with the left-behind parent! I therefore expect this beastly law to be consigned to the history books before too long. A law which effectively permits a mother to cut out – like a cancer – a father from the life of his child is utterly barbaric and has no place in 21st Century Britain.

    Bruno D’Itri

    Sun 10, Feb 2013 at 4:52pm