The British family justice system is often described as a blunt instrument by professionals who work in it because the family courts offer very little by way of truly tailored outcomes, restricted by process, conflicts of interest, culture and whether we like it or not, wildly fluctuating levels of competence in every sector of the system.
Ensuring that families get the best possible outcome is fraught with constraints and results in both mothers and fathers feeling let down, with many feeling as if they have been denied time with their children as a result of court ordered contact arrangements. And it is the children who suffer the most as a result, because the system, for the most part, still does not understand children well enough.
The recent and ongoing feud in England over shared parenting has fuelled the dilemma of unsatisfactory family court processes, as pressure groups focus on finding ways to ensure that parents are not excluded from the lives of their children. A new presumption in law was suggested, that of one involving shared parenting. This would mean that every time a child went into the family courts as a result of their parent’s separation or divorce, that the court would presume, as a starting point, that each parent was entitled to have contact with their child. An outcry followed: what kind of presumption would this be in the finer detail and would it replace the guiding principle we had in law, that a child’s welfare would be the paramount consideration in every case?
Shared parenting is, at its most general, the idea that upon separation, both parents play a role in their children’s lives. It does not define the quantity of time each parent spends with a child, but focuses more on quality of time, whether in person or through indirect contact like phone, mail and Skype, for example. At its most narrow interpretation, it implies that each parent is to share their children’s time equally between them. This latter definition has become a political hot potato in Britain, with many mothers, and child experts warning that division of time in this kind of situation is not an exact science and that an attempt to enforce such a regime on all children going through separation would lead to many feeling disorientated and unstable, and a great many being exposed to harm. This was compounded by the fact that our child protection legislation had historically not housed presumptions of any kind, as they were considered to be restrictive and therefore potentially dangerous as they could lead to miscarriages of justice. Others hailed these concerns as unfounded, and many father’s rights groups, supported by politicians and academics, rallied to counter those concerns, mainly by suggesting that the presumption could easily be rebutted if evidence existed to show that a child would be harmed by contact with one parent or another.
Of course, there can be no sensible debate over whether children should have the opportunity to spend time with both their parents. It is hugely important for children to be able to do that whenever possible, not least of all because our children should have access to the people who love them. But when we look at a system which is attempting to cater for all families from all walks of life, with differing backgrounds and perceptions, we have to make sure that whatever processes are in place it can deliver the most efficient and personal service, for everyone. The family courts are also a very different arena to the family unit – they have to make sure that every child is protected and their best interests promoted.
For a time, speculation ran rife over what the government intended to do in relation to shared parenting, but made it clear that it intended to consider placing some kind of presumption of shared care inside current legislation, which might require courts to presume that shared care should be the norm unless evidence can be shown to the contrary either by inserting this consideration as part of the welfare checklist or adding it in as a starting point. The list of suggestions the government gave was varied and included:
- Amending the Children Act 1989 to require the court to “work on the presumption that a child’s welfare is likely to be furthered through safe involvement with both parents – unless the evidence shows this not to be safe or in the child’s best interests”.
- Requiring the courts to have regard to a principle that a child’s welfare is likely to be furthered through involvement with both parents;
- Providing that the court’s starting point in making decisions about children’s care is that a child’s welfare is likely to be furthered through involvement with both parents, and;
- Inserting a new sub-section immediately after the welfare checklist, setting an additional factor which the court would need to consider.
Since those suggestions were made, the UK government has begun working on a new piece of legislation, called the Children and Families Bill. This Bill has become the home of what is now a presumption of shared parenting, but as the Bill is still being worked upon, it is not yet law. Part 2, section 11 of the Bill deals with parental involvement and tells us currently that:
In this way, the presumption as it stands does not quantify the amount of contact, and is unlikely to, which has caused certain groups to react angrily, saying that the presumption is nothing more than a placebo, a nod to aggrieved fathers in the UK, but that little will change. Others are anxious about the presumption still, as it is felt that if a parent who is trying to protect a child from abuse is unable to offer the kind of evidence that might be expected, or fails to offer it in time, within the court’s artifical time limits and boundaries, that it may lead to children being placed in harm’s way, and possibly dying as a result.
But there is also a question mark over the legality, or compatibility of including a presumption of shared parenting, of any kind and definition, when we consider the existence of the Paramountcy Principle, which tells us that the welfare of the child must be paramount when deciding family cases. At its best, an added presumption might simply behave like an echo of the Paramountcy Principle, making it a pretty innocuous addition and at worst, where ‘involvement’ were to be defined as a 50/50 time share in a case going through the courts, it could be in direct contravention of The Principle, whose starting point is not prescribed, but fluid, allowing for the possibility of greater personalisation for contact and therefore better outcomes for children. Much rests on how sophisticated the process could become and the competence of those working on future cases.
The Paramountcy Principle is arguably the finest standard we have in ensuring that children can be with both their parents where it’s right for them to be so, but it is not working as well as a safeguard as it should, and the government’s recent decision to consider adding a presumption may well be an indication of an acknowledgement on this front, or a very ambiguous nod to fathers’ rights groups who have long campaigned for a change in the law. But what if these quarters are wrong? What if our Paramountcy Principle is failing us, not because it is not good law, but because it is law without the support on the ground which it needs to succeed? And if that is the case, (which I believe it is) a presumption in shared parenting is doomed to fail also, whatever its definition and will leave fathers’ rights groups feeling more than a little disappointed.
Although the Bill is not yet complete and will face more amendments throughout the coming weeks, it is unlikely that the presumption of shared parenting in its current state will change a great deal. If that is so, then we will have to see how this presumption works in practice and hope that it does not cause more harm than good. The reality though, is that the UK family justice system doesn’t need more law. What it needs is a thorough revamp, which needs to involve some serious culture changes. A presumption of shared parenting is, to my mind, unnecessary and ultimately will, I think, prove fruitless.
Ongoing series relating to Family Law written by:
Edited by Anthony Gonzalez for Child Quest International