Some interesting information pinged into the Frost Magazine inbox from the Law Society. Did you know that shared parenting should not be confused with parental rights?
Shared parenting legislation, aimed at strengthening relationships between parents and children after separation, could detract from children’s wellbeing, the Law Society is warning.
Responding to a Government consultation, published today, in which ministers are proposing different ways to establish the notion of “shared parenting” after separation, Law Society President John Wotton said: “Introducing a legislative presumption of shared parenting could lead to unrealistic expectations from fathers, with a huge rise in fathers asking the courts for ‘equal time’. This could undermine the Government’s drive towards mediation and out of court settlements. The Government should avoid any implication in the statute of any right to equal time with a child, or any prescription of appropriate amounts of time.
The primary focus should be on the rights and welfare of the children, not those of parents. The principle that the welfare of the child is the court’s paramount consideration should be maintained.”
John Wotton pointed out that: “The current legislation does not favour one parent over another, but seeks to ensure that arrangements following breakdown are based on the best interests of the child.
“It is in a child’s best interest to have a meaningful relationship with both parents where it is safe to do so. The benefit of ongoing involvement with both parents is already a factor in the court’s decision-making process.
“There is no doubt, unfortunately, that once a court has made an order for access, and a father finds that the access is being thwarted by the mother, there is no currently effective remedy for the father. The Law Society therefore welcomes the Government’s intention to find more effective sanctions to enforce breaches of court orders regarding care arrangements.”
Our elected Government plans to bolster the legal right of a child to have a meaningful and on-going relationship with both its parents, post separation/divorce. It recognises that family law, as it currently stands, all too often fails to serve a child’s best interests in this extremely important respect.
The Children Act (1989) rightly instructed the judiciary to serve the child’s paramount interests. However, the judiciary has singularly failed to understand or accept that a child’s paramount interests are, in the vast majority of cases, actually best served by facilitating and enforcing its meaningful relationship with both its parents. Instead, the judiciary has remained wedded to the ‘single parent-primary carer’ model; an approach which has, sadly, led to a generation of fatherless children. Relocation law is a prime example: it rides rough-shod over any notion of shared parenting by placing thousands of miles between children and one of their parents. The judiciary’s approach is out of date and simply does not reflect the realities of 21st century shared parenting.The aim of our Government’s proposed legislative changes is to make it very explicit to the judiciary that, for most children in litigated cases, ‘best interests’ equates to ‘shared parenting’.Let us hope that any amendment to the Children Act (1989) will be robust enough to safeguard a child’s right to be parented by both its parents. Let us also remember that this issue is not about parents’ rights: it is entirely about childrens’ rights.Furthermore, let us be absolutely clear that Shared Parenting does NOT, as many critics would have us believe, necessitate a precise 50/50 split of parenting time. This would be highly impractical in most cases. Rather, it is expected to range upwards from 30/70. This point has been made very clear by the Government. Another objection from the critics is that it will endanger children. Very plainly, Shared Parenting will only be granted to parents who are not a proven risk to their children. Unsubstantiated allegations made by bitter and disgruntled ex-partners – intent on ‘using their children as weapons’, to coin Sir Nicholas Wall’s expression – ought not to be enough!It is a very great pity that the judiciary has failed to be proactive on Shared Parenting. For example, in the case of Re D (Children) [2010] EWCA Civ 50, Sir Nicholas Wall, the President of the Family Division, was presented with no less than 15 contemporary scientific psychological and sociological research reports which demonstrated, beyond all reasonable doubt, the verifiable benefits for children of maintaining close and meaningful relationships with both parents. This irrefragable scientific evidence went ignored or relegated by him. In contrast, our Government, to whom the scientific evidence was also sent, is taking full heed. This is precisely why our elected Government needs to legislate. Child welfare is far too important to leave in the hands of a few un-elected High Court judges, who often seem to be out of touch with modern society and family life. When Shared Parenting legislation was introduced in Australia, court litigation reduced by 30%. This may well help to explain why many who work in the family court business are objecting to our Government’s proposals.
Best regards
Bruno D’Itri