On 1 November 2012 Edward Timpson MP, the Parliamentary Under Secretary of State for Children and Families, wrote to Sir Alan Beith MP, Chair of the Justice Select Committee, about shared parenting.
But what exactly is shared parenting, as Timpson's letter doesn't actually tell us. Shared parenting means giving both parents (and sometimes more than two parents, for example in three parent families) the opportunity to have an equal role in their child's life. Very importantly, that does not mean shared residence in the 50/50 sense, which tends to afford both parents generous overnight contact with their child. In fact, it can take on a number of manifestations from a 50:50 arrangement where a child spends 50% of his or her time with each parent to a child spending seven nights in every 30 with one parent. Shared residence tends to be more about the symbolism of equal parenting rather than the actual substance.
Timpson's suggestion is that our principal piece of private children law (that is, disputes between, most frequently, two parents but sometimes other extended family members such as grandparents) be amended. The proposed amendment is for there to be a presumption that both parents have the opportunity to play a positive role in their child's life if it's safe and in their 'best interests'.
Timpson thinks that, in the absence of an explicit presumption that, the involvement of both mothers and fathers will be of benefit to a child's life; mothers and fathers can't be confident that their role in their child's life will be properly considered by a court.
As a family lawyer, I've acted for many fathers, separated or divorced, who would agree that this is a long overdue development. Many of my father-clients have complained that the law is sexist, biased to mothers and they are made to feel that they should be lucky to have any overnight contact with their child at all, despite their fathering/parenting capabilities. For some of them, overnight contact during the week is considered to be the ultimate accomplishment.
Similarly, I have had many mother-clients complain that their child's father has always behaved like the weekend parent, choosing to focus primarily on work throughout their family life, and now that the relationship is over, they have established a newfound interest in full time parenting. In fact, one of my clients told me last week that her husband had asked her, for the first time, how to change their daughter's nappy when she is already ten months old. He had received the draft divorce papers the day before, so you can forgive her cynicism for thinking that his enquiry was well timed.
I've had clients who will, with the assistance of expert family lawyers, reach a voluntary parental agreement on a strictly 50/50 basis, whereby the child spends half their time with one parent, and half with the other. For some clients, this has worked beautifully. For others, the child in question has been made to feel like a human elastic band, pulled and stretched in every direction.
It is a given that any child would, ordinarily, benefit from a close and loving relationship with both parents. But, the child's best interests should always be the decisive factor. Children law in this country is about putting the child's welfare first and above absolutely everything else. My fear is that this presumption might take the focus away from the child towards the parents, which frankly is not what this should be about. Yes, we need to break away from these antiquated associations and ideologies of the mother-child relationship being the at the core of a 'family'. Being a mother does not entitle you to have a monopoly over your child But that said, we need to be realistic and respectful of previous caring patterns. Acknowledging the importance of not disrupting a well-functioning child-care arrangement, which empirically sees a child develop its primary attachments to its mother; the primary carer, just to satisfy a non-resident parent, usually the father, is of critical importance.
Shared parenting is a helpful concept. It would have been even more helpful had the parameters of its meaning been carved out and had Timpson specifically identified the fact that it does not mean an entitlement to a child's residence being equally split between two homes nor should it be synonymous with shared residence in any manifestation. As a concept, it encourages constructive parental relationships. It does not give parents an unfettered right to shared residence. Understanding this dichotomy is of monumental importance for every child who is, or may become, the child of separated parents.
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The raison d’etre of the Law Society is to serve the interests of the Legal Industry. Of this, there can be no doubt.
The Law Society is perfectly aware of the extensive and compelling scientific evidence demostrating, beyond all reasonable doubt, the significant benefits for children of their remaining in meaningful contact with both parents, post separation or divorce.
However, the Law Society is also very aware that Shared Parenting legislation is likely to be highly damaging to the interests of its members, as profitable litigation would decrease.
The Law Society faces a real dilemma:
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Should the Law Society stand up for the interests of children and support Shared Parenting legislation or, instead, should it stand up for the interests of its members and oppose Shared Parenting legislation?
Sadly, and rather predictably, it has opted firmly for the latter, and is using all of its sophistry and guile to try to convince our Government that Shared Parenting legislation will be harmful to child welfare.
Some Government officials, such as Alan Beith, have been taken in. Other Ministry of Justice officials have also been seduced and have stated recently that Shared Parenting legislation is NOT actually expected to alter outcomes in family justice cases. The sole purpose of any new legislation, they have said, is simply to try to dispel the widely-held (but, according to them quite unjustified) ‘perception’ of anti-father bias in the system!
We must do ALL we can to expose the shockingly immoral and self-serving behaviour of the Law Society in order to serve the genuine best interests of thousands of children.
Bruno D'Itri
In many acrimonious cases an embittered resident parent uses this power to exclude the second parent from the lives of the children. The courts are reluctant to punish this abhorrent behaviour, their rationale being that to punish the primary carer is tantamount to punishing the children. With no deterrence, this behaviour is set to continue.
Quite naturally, an unjustly excluded parent will employ the very costly (£200 plus per hour) services of solicitors and barristers in a desperate effort to regain contact with his children. Truly obscene sums of money begin to flow from broken families into the coffers of the law firms. The Family Justice Industry feeds upon the love an excluded parent has for his children.
A presumption of Shared Parenting would permit a loving parent to be fully involved in the parenting of his children, post separation or divorce, without the need for costly and lengthy litigation. In Australia, for example, litigation reduced by circa 30% following the introduction of Shared Parenting legislation. Of course, in those relatively few cases where there is a serious and proven risk of harm, contact can and should be restricted.
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Plainly, a similar reduction of circa 30% in British family court litigation would prove extremely damaging to the Family Justice Industry. It is little wonder, then, that the Law Society is vehemently against a presumption of Shared Parenting. Family lawyers are not saints; we should not naively assume that their leaders would place genuine justice for parents and children ahead of their desire to maintain their income stream.
The judiciary is no better. Sir Nicholas Wall – the former President of the Family Division – sought to blame parents for “using their children as weapons”, without accepting in the least that it is the System itself which facilitates, encourages and fails to deter such abhorrent behaviour.
The real scandal is that the Law Society and the judiciary appear to have succeeded in persuading our Government to significantly dilute its original Shared Parenting proposals. There is now a very serious risk that the unsatisfactory status quo is set to continue.
Shame on the Law Society.
Shame on the judiciary.
Shame on the Government.
Bruno D’Itri