Plans to amend law to include presumption of shared parenting

03 Jan 2013

Recognising concerns raised mostly by fathers that following separation or divorce they are marginalised by their children's mother and the Courts, the Government has announced that it proposes to make changes to the Children Act 1989 to provide for a presumption of shared parenting.

Most parents are able to make arrangements for their children following separation or divorce between themselves and the Courts will only become involved if it is asked to make decisions because the parents are unable to do so, or it considers it appropriate to become involved in order to ensure that the child's welfare is preserved.

The Court's paramount consideration when determining the arrangements for the children has always been each child's welfare and this principle will not be altered or removed by the Government's proposed amendments to the existing law.  The amended wording states that when considering an application by a parent with reference to a child, 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".  

Effectively, this proposed change enforces the ethos that both parents are equal, but it does not go so far as to state that 'shared parenting' means that the child spends equal periods of time with each parent.  Whilst welcomed by father's rights groups, the proposed change has been met with concern from the Law Society and legal practitioners who fear that the introduction of this legislation will lead to an increase in Court-based applications from parents seeking to gain some advantage for themselves rather than considering the impact on their children and, consequently, their welfare.  Australia introduced similar legislation in 2006 and subsequent research revealed that many children were placed at risk of harm by inappropriate arrangements being made as a result of the presumption of shared care.

Parents should be encouraged to agree arrangements between themselves and Court proceedings only considered as a last resort or where the child's safety is at risk.  Arrangements agreed directly between parents are much more flexible than a Court Order which can be considered to be a blunt instrument.  Parents need to recognise that the arrangements made in an Order when a child is 4 or 5 years of age are not going to still be appropriate for that child when he reaches the age of 11 or 12.  Unless parents can, therefore, agree what is right for their child, they are likely to be tied into acrimonious and expensive Court proceedings for the remainder of their child's minority with a Judge making a decision which neither parent may find acceptable and difficult to implement.

Whilst coming to terms with the change in their own circumstances and having to make incredibly important and difficult decisions about their own future, parents often find it hard to distinguish the needs of their children from their own.  Professional assistance is available from non-adversarial family practitioners; collaboratively trained lawyers and mediators who can assist parents in making the decisions as to the arrangements for their children through communication and negotiation and ensuring, therefore, that Court proceedings are avoided wherever possible.  This enables parents to retain their dignity, preserve a relationship with each other for the benefit of their children and ensure that costs are kept to a minimum.

Learn more about Resolution, a family law body which believes in a constructive, non-confrontational approach to family law matters.