Back in 2011, the Family Justice Review chaired by David Norgrove recognised that "most children benefit from a relationship with both parents post separation" and "shared parenting should be encouraged where this is in the child's best interest". However, it recommended against a change in legislation that would create a legal presumption of shared parenting.
It was felt that such a presumption would lead to parents mistakenly believing that their children should spend equal periods of time in each parents' care and that a change in legislation would make "contact" a parental right as opposed to a right of the child as determined by the Children Act 1989.
Despite this, in its response to the Family Justice Review, the Government announced that it intended to change legislation such that, whilst making it clear that "a meaningful relationship is not about equal division of time, but the quality of parenting received by the child", there would be a presumption of shared parenting.
By the end of 2012, however, this intention had been somewhat watered down with the Government announcing that it intended to amend the Children Act 1989 to provide that the Court is "to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child's welfare".
Finally, on 22 October 2014, the proposed amendments came into force and the Children Act 1989 now provides that "in specified circumstances, unless the contrary is shown, the Court can presume that parental involvement in a child's life will further the child's welfare". "Involvement" is defined as involvement of some kind, either direct or indirect, but not a particular division of a child's time.
Since its inception, the Children Act 1989 has always required the Court, when determining any application with reference to a child, to place the child's welfare as its paramount consideration and in the majority of cases, the Court has considered that, provided it is safe to do so, the involvement of both parents in the life of the child is in the best interests of the child's welfare.
In the circumstances, this most recent amendment to legislation does little in practice to change the way Courts deal with applications. However, it should give comfort to those parents who are forced into applying for a Court Order that their children can spend time with them, that unless there is evidence before the Court that their involvement in the child's life will place the child at risk of suffering harm, the Court must presume that their involvement will further the child's welfare. The Court must then go on to determine the form that involvement will take.
Trethowans' Family Team are members of Resolution, the independent body representing solicitors who specialise in family work. They recognise the importance to children of both parents remaining involved in their lives following separation and divorce and believe that a carefully constructed Parenting Agreement at an early stage will minimise or even avoid later disputes as to the arrangements for the children.