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Shared Parenting: An Ambitious Project

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So the government wants children to have an ongoing relationship with both parents after separation or divorce and has today announced that they will be considering inserting a statement to this effect into the law.

Clearly there are few who would argue with the principle, borne out no less by the majority of separating parents who manage to make successful shared arrangements for the care of their offspring. Sadly, for the 10% that can't, lengthy and potentially damaging family court proceedings too often ensue.

It is therefore a brave decision by the government to go against the long deliberated recommendation of the Family Justice Review for no change in the law on shared parenting. The risks of doing so should not be underestimated.

The government is right to give careful consideration to the 'difficult task' in hand. Any room for doubt over what constitutes an 'ongoing' or a 'meaningful' relationship will be argued over - potentially at great length - in court. The government says it does not intend to create a presumption of shared time, which would present great difficulties for parents on a practical level, but it is not clear how this can be avoided.

The Australian family justice system has been besieged by delay since the introduction of a presumption of shared parenting. The less frequently cited experience in Sweden is also worthy of note. They introduced shared parenting (or 'alternating parenting') into the law in 1998 only to have to change it seven years later due to concerns that joint custody was being ordered where it was not in the best interests of the child.

Here in the UK, case law already dictates that the starting point for a judge in any new case is that a child should have contact with both parents, unless it would not be in their best interests. The paramountcy of the child's welfare in the law enables judges to examine and reach a decision on what's best for the child in each individual case and is a principle that should not be tampered with lightly. In addition, roughly 45% of residence orders are made in favour of the father, which dispels the popular impression that judges always rule in favour of the mother.

One school of thought, therefore, is that rather than seeking to legislate, we wait for, and encourage, the societal shift towards parents sharing their child's care from birth through parenting support and early intervention both pre- and post-birth. The logical consequence will be post separation arrangements that mirror those already in place. This has been the experience in Sweden, where even with the legal presumption removed, 95% of parents now arrive at their own shared parenting arrangements.

This shift could also be encouraged by educating new parents to consider the care of their children if they separated and about the impact of ongoing conflict - not exactly ideal world stuff, but clearly needed given the numbers of parents that separate. The recommendations relating to this within the review fortunately appear to have taken on board.

Any change in the law should not be heralded as a panacea for fathers. It would only affect the small minority of parents who can't make their own arrangements, most of these being the most intractable cases. They may be intensely hostile towards one another on top of a whole range of other possible problems. Fighting hard in court simply lengthens the proceedings, increasing the potential for further delay. And all this could then simply result in the court making an order that they will never follow, exposing the child to ongoing conflict and possible harm, the only recourse being to return to court for a second round.

Catastrophically, all this will coincide with the removal of legal aid. With diminishing support for legal costs and increasingly squeezed household finances, many more parents will be in court without a lawyer. It is well-known that litigants-in-person cause additional delay, or worse still, the increasingly common scenario where a parent representing him or herself is pitched against a lawyered-up opponent. This is wholly inadequate given the importance of the matters at stake.

The government is clearly embarking upon an ambitious project in seeking to change the law in this area but the priority with any reform has to be to reduce delay and with it harm to the child. The stakes are high, and the pitfalls great, as let's not forget - when it comes to decisions that affect children, any repercussions will not only be felt today, but potentially also for many years to come.

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