When living together, both parents are able to share in their children’s day to day developments, and watch them mature and grow. It is often the case that one parent will have taken the main responsibility for looking after the children, frequently by working part-time to do so. Increasingly I come across parents that have both reduced their hours, perhaps each working four day weeks, to enable them to share the delights and burden of childcare. After separation or divorce most parents manage to agree between themselves how they will look after their children, but many separating parents are taken by surprise by the difficulties that they can face when trying to make arrangements for their children with the other parent. There is a general understanding that it is best for children where at all possible to continue to have a close relationship with both their mother and their father. However, there can be numerous difficulties with this as where emotions are running high and trust is at an all time low it can be hard for parents to agree on the arrangements.
Shared Parenting Consultation
Back in June the Government confirmed their intention to change the current law, governed by the Children Act 1989, to emphasise the importance of the continued role of both parents after separation. Children’s Minister Tim Loughton said that “We want the law to be far more explicit about the importance of children having an ongoing relationship with both their parents after separation, where that is safe and in the child’s best interests.” Ministers are concerned about any inbuilt or perceived bias with the current legislation, and want to clarify the law to make it clear that children benefit from having both parents involved. The consultation, which closed in early September, set out four different options for changing the current law. The Government’s preferred option is that the law should be changed to set a presumption that the child’s welfare would be advanced by the involvement of both parents, unless this was shown not to be safe or was not in the child’s best interests. They have made it clear that it is not their intention to provide for a presumption of an equal division of time between the parents.
The Current Law
So what is the current law? Where the parents cannot reach agreement, either one of them can apply to the Court for an order under the Children Act 1989. The orders that the Court can make include residence orders, formerly known as custody, and contact orders, otherwise known as access. Residence orders can include shared residence orders, so the Court already has the power to make it explicitly clear that both parents share responsibility for their children. First and foremost, the welfare of the child is given paramount consideration. The Court will make an order which is considered to be in the child’s best interests, with the focus on the child rather than on any rights of the parent. In reaching a decision a welfare checklist is considered, which includes the following:-
a) The ascertainable wishes and feelings of the child concerned, in light of his age and understanding;
b) His physical, emotional and/or educational needs;
c) The likely effect on him of any change in his circumstances;
d) His age, sex, background and any relevant characteristics;
e) Any harm which he has suffered or is at risk of suffering;
f) How capable each of his parents and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
g) The range of powers available to the court under the Children Act 1989 in the proceedings in question
Whilst the importance of both parents in the child’s life is factored into the Court’s decision, this is not expressly stated in the Act.
Shared Parenting – the Future?
In response to the consultation both the Law Society and the Office of the Children’s Commissioner (OCC) expressed grave concerns. Whilst they welcome the intentions behind the proposals, they have stated concerns that creating a presumption of shared parenting would impact on the current principle that the welfare of the child is paramount. They do not support a change to the legislation in the terms proposed. The OCC expresses particular concerns that the proposals would result in a shift in perception to the parent’s rights, as opposed to the best interests of the child. It remains to be seen exactly if, how and when the law will actually be changed.
Image by davitydave under a Creative Commons Licence
