With the sweeping changes being made by the Government to the landscape of family law, the issue that attracts the most debate is that of shared parenting and the implications it may have on the welfare of children. Research, reports and opinion were considered by Sir David Norgrove as part of the Family Justice Review. He concluded that a presumption of shared care should not be introduced into legislation. Contrary to the recommendations, amendments to the Children Act 1989 were this week announced by the Government which will, no doubt, cause a storm and see a fresh attack by partisan groups who will hurl statistics and rhetoric across the muddy trenches of the gender debate.
In its response to the Family Justice Review, the Government asserted its commitment to the principle that the child’s welfare is paramount, but went on to say that a statement should be inserted into legislation to establish a belief that it is in a child’s best interest to have a ‘meaningful relationship’ with both parents where there are no issues of safety or harm. How a ‘meaningful relationship’ is defined will need to be interpreted by case-law but it is hoped that the outcome will be assessed in terms of quality of relationship rather than time spent with each parent.
How will this affect the outcome of conflicts in relation to children? Comment so far has focused on the decisions of the court and noted that there are few orders made where parents are refused access to their children. However, in the majority of cases, a settlement will be reached out of court on the basis of advice about the ‘likely outcome’ of proceedings. Generally, the court will grant ‘residence’ of the child to one parent and order ‘contact’ to the other which, in many cases, will be a weekday visit and a weekend stay on an alternate basis. Research has shown that it is not uncommon for advisors to ‘broker a deal’ on the basis of judicial thinking in order to avoid the cost of contested proceedings and the orders themselves are fairly standard. In other words, there is risk that a ‘one-size fits all’ approach defining family relationships in percentages is being applied. There has, however, also been a recent trend to recognise the commitment of both parents by the making of ‘shared residence’ orders and many are calling for more widespread, genuine shared care arrangements.
Karen Woodall of the Centre of Separated Families argues that negotiating shared care can be problematic as our belief system is based on a ‘single parent model’ which identifies one parent as the ‘main carer’ and therefore the sole family unit. Historically, the definition of parent and provider through the introduction of various 16th century Poor Laws influenced the division of parental labour with mother as carer and the father as financial provider; a belief that has prevailed for hundreds of years and remains the basis of our current child maintenance regime.
Armed with these presumptions, parents often become positional in order to fight for the label of ‘main carer’. This can leave the other party feeling that his or her contribution to the family is no longer valid and struggling to understand why a parental relationship is now redefined as ‘having contact’. This is also an issue that is not gender specific. There are many cases where a father is solely responsible for the children and the problems caused by the single parent model and failure to provide adequate financial support are not attributes inherent to either gender. However, while the statistics do show that, more often than not, the mother will be defined as the main carer, perhaps the problem is simply the division caused by such a label.
It is hoped that the amendments will not lead to an assumption that a meaningful relationship or presumption of shared care is to be interpreted as ‘equal time’. This would be as incomprehensible as deciding contact on the basis of de facto percentages. Every family is different and each child within that family is an individual who needs to be acknowledged more widely by those in the care or court system.
The availability of mediation, support and advice is going to be essential in order to help parents reach a place where they are able to negotiate their own arrangements and the government will need to ensure proper funding is provided to organisations who offer information and advice to separating parents. Without this commitment, it is doubtful whether the amendments to legislation will prevent cases from continuing to be fought in court.
Ultimately, parents need meaningful and holistic support in the transition from parenting together to parenting apart and any attempt to address imbalance that may prevent negotiation and trust should be welcomed to reduce the risk of conflict. Whilst this may be perceived as blue-sky thinking, when advising clients or making a decision through proceedings, the starting point should surely be this: in these circumstances and within this family, what is the best emotional, practical and financial contribution that these parents can make to achieve the best possible outcome for the children?
It is not an issue of presumption and time. It is not an issue of one parent having more rights than the other. It is an issue of equality, a commitment to welfare and a solid foundation to enable a reciprocal relationship to continue despite the pain and upheaval of relationship breakdown. If the amendments can achieve this, then the impact on families may indeed be positive.