Presumption of Shared Parenting?
Fair or not, accusations that the family courts are biased towards women are nothing new. Organisations like Fathers 4 Justice promote an idea that courts will necessarily side with the mother in a disputed residence or contact hearing. While it is true that the mother is more often than not the parent with care, there is no legal or practical reason why there should be any imbalance in this way. The Children Act, the main piece of legislation governing court cases in this area, specifies that neither parent has particular rights to contact or residence; instead it is the child that has a right to see both parents. However, not a department to let the lack of a problem prevent them from proposing a solution, the Department for Education has decided to promote what it says is a new idea, the “presumption of shared parenting”. This is the principle that both parents should be involved in the parenting of a child after separation and the child should “maintain a meaningful relationship” with both parents.
Whether this means an equal 50/50 division of time or simply that both parents will be involved in the child’s upbringing is something which may differ in each case. Under the current regime this figure is usually dictated by the practicalities of the particular case, and the new rules do not put forward any clear framework as to how this will change in future. Indeed, it is not clear what “maintaining a meaningful relationship” will mean in practise. As the law stands, it is already a presumption in the family courts that maintaining a relationship with both parents will be beneficial to the welfare of the child, and further that the welfare of the child is the paramount consideration for the family court.
It is being proposed that fathers have equal or at least substantial input in their children’s lives. However, it could be argued that this is already the case; in 2010, just 300 section 8 contact orders were refused out of 95,460 applications. What this would mean in the context of the new provisions would depend on how “meaningful relationship” comes to be defined, as no doubt some of these cases will have limited the interaction between the parent without care and the child to indirect or heavily supervised contact.
Similar changes were made to family legislation in Australia in 2006, and the result has been a marked increase in childcare litigation. It is believed down under that the presumption of shared parenting has created a right to have equal time for contact which has led to far more contested litigation. In actual fact, the presumption does not create any such right. Nicholas Cusworth QC, until December 2013 chairman of the Family Law Bar Association, was quoted in The Guardian when this idea was first mooted in 2012 as saying “on shared parenthood, we agree with the Family Justice Review’s finding that, learning lessons from the Australian experience, legislating on this issue risks creating the perception that there is a right to substantially shared or equal time, for both parents. It is already widely understood and applied by the courts that children benefit from having a relationship with both parents and legislation would be unnecessary and may do more harm than good. The government must consider this with the greatest of care.”
David Norgrove, chair of the Family Justice Board, was also sceptical of the proposals, commenting in a report released in 2012 that he had “thoroughly considered the issue of shared parenting and concluded the law should not be changed. If the government has decided to legislate, I regret that and it will be vital to find words that avoid the difficulties encountered in Australia.
The Law Society has gone as far as describing these changes as “seriously flawed”, with some claiming that these proposals detract from the primary consideration- the child.
Then there is the possible effect on vulnerable parents to consider. How about relationships which have suffered from domestic violence? Surely shared parenting could have a detrimental effect on both the victim and the children. There are of course cases, however few in number, where maintaining a meaningful relationship would be either impossible or unwanted. In such instances giving a parent a right to see a child that does not want to see them, or even making a parent think they have that right as the comparable legislation has appeared to do in Australia, is likely to produce more rather than less contention in family cases, and more rather than less emotional difficulty for children in family cases. Equally, a presumption of shared parenting is not going to create through legislation a desire for an absentee parent to involve themselves in a child’s life. Where a parent does not wish to take an active role, no legislation will create a meaningful relationship where one did not exist before.
Other than a presumption of shared parenting, the major reform proposed is the statutory 6 month time limit in care and contact cases. How this operates in conjunction with a presumption which has slowed up resolution in family courts in Australia remains to be seen. To a certain extent, a statutory time limit misses the real delay in family courts, which is almost always for practical reasons. This could be through lack of available court time, CAFCASS officers not being able to produce reports on time, or other delays resulting from a lack of investment in the practical apparatus of family justice.
While other aspects of the review of childcare law have been cautiously welcomed, such as proposals to strengthen the courts powers of enforcement in contact cases and proposals to streamline the process of Children Act applications with a view to speeding up the resolution of contact disputes, the presumption of shared parenting has united opinion as being a bad idea. However, with the government apparently set on this proposal it will remain to be seen what the judicial interpretation of “meaningful relationship” is, how it affects contact decision, and whether a new regime proposing to free up the family courts ends up bogging them down in unnecessary litigation as it did in Australia.
Leila Azzi and Daniel Flynn
Garner & Hancock LLP
20th January 2014
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