Shared parenting presumptions
We all start with two biological parents at birth and this two-way image stays with us throughout our lives, whatever our individual circumstances. Whether we live with those biological parents, with adopted alternatives, or with some mixture of the two in surrogacy, we may lose a parent for a whole host of reasons, from the extreme (death) to the relatively mundane (an acrimonious divorce, irresponsibility). Adoption by the unattached takes some children straight into the world of single parenthood.
But most of us would agree that children having contact with absent parents after divorce or separation is an ideal and it is one which family law courts try to encourage whenever possible for the children whose lives are laid out before them. During divorce proceedings, angry mothers may need to be reminded of the father’s rights to access, or distracted, disinterested Dads persuaded of the children’s need to maintain contact.
Few would argue, I think, that this is not a good thing. Seeing divorced Dads whether during the week, at weekends or having regular chats with them on the phone helps to maintain the sense of contact and continuity, minimising the distress every child feels when their parents split up.
But should we go further than simple encouragement? Is there a place for a legislative presumption in favour of shared parenting? That was, of course, the proposal put forward in the Ministry of Justice consultation which officially closed last week. Back in June, I welcomed the proposals set out in the consultation. I wholly agreed with the following statement in the proposal, for example:
“The decisions made by family courts about the upbringing of a child are based on the principle that the child’s welfare is the paramount consideration. The benefit of ongoing involvement with both parents is already factored into these decisions, but it is not explicitly stated in the legislation that guides this process (the Children Act 1989). This has contributed to a perception that the law does not fully recognise the important role that both parents can play in a child’s life.”
The paper proposed that a new subsection be inserted into the Children’s Act 1989, stating that: “….that the welfare of the child concerned will be furthered by involvement in the child’s upbringing of each parent of the child who can be involved in a way not adverse to the child’s safety.”
I still believe, as I did back in June, that this is a wholly sensible suggestion, as it would enshrine clearly in law the importance of parents in a child’s life – something which has been wholly overlooked in my view and which has left a vacuum for fudge and exploitation by the angriest of spouses.
Meanwhile, the Law Society remains as firmly opposed to the proposals as ever, despite saying they welcome the government’s overall interest in cooperative parenting. Its official response to consultation is brisk:
‘The welfare of children must always come before the rights of parents and no legislation should create or point to a perception that there is an assumed parental right to substantially shared or equal time for both parents.”
The Society remains convinced that the introduction of shared parenting legislation could put children’s safety at risk, by moving the central focus in assessments of a child’s welfare away from the need to protect them from harm towards an assumption of equal access.
I am no nearer to understanding this point of view than I was back in June. “In a way not adverse to the child’s safety” is pretty unambiguous, so how could inclusion of the new subsection be to the detriment of children? This Law Society’s stance still makes no sense to me and simply does not reflect my experience of the thousands of decent parents who have passed through my doors, genuinely wanting the best for their children.
Clearly the Law Society is not going to change its views on this surprisingly contentious issue. But then neither am I.
Photo by Adrien Schopfer
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Marilyn Stowe is the senior partner in Stowe Family Law, which has offices in Yorkshire, Cheshire and London. With more than 30 years’ experience handling divorce cases and family law proceedings she is regarded as one of the most formidable and sought after divorce lawyers in the UK. In 2012, Marilyn became one of the first solicitors to qualify as a family law arbitrator.
All persons mentioned in the scenarios are fictitious: details have been deliberately changed in order to protect identities and other confidential circumstances of my clients. All advice and information on this blog including posts written by guest authors, is given only as a general guide to the operation of the law on the date of publication. Readers must place no reliance whatsoever on the content of this blog and must always obtain their own legal advice. Marilyn Stowe, Stowe Family Law LLP and guest authors accept no liability whatsoever arising as a result of reliance upon its content.
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