Is shared parenting legislation really the way forward?

Children|June 1st 2011

Would legislation for shared parenting time help children?

This question is asked in the latest study published by the Department of Social Policy and Intervention at the University of Oxford.Its authors focus upon research in Australia, where changes to encourage shared care parenting were made in 2006.

Shared parenting arrangements, in which childcare is split 50:50 between parents, have become more popular in England and Wales in recent years. Even so, just three per cent of separated parents share the care of their children equally. Fathers’ groups have called for legislation to promote shared parenting in cases that go before the family courts.

However the University of Oxford’s researchers conclude that there is a need for caution. They highlight difficulties in Australia, suggesting that a presumption of shared parenting is not always in the child’s best interest, when the stress and burden of moving from one house to another outweigh the benefits.

There is strong evidence that “high ongoing post-separation conflict is damaging for children”, and “growing evidence that shared time arrangements involving ongoing high levels of parental conflict are more damaging than other parenting arrangements with entrenched high conflict”. A recent Australian study has indicated greater difficulties in attention, concentration and task completion for children in this group.

Another Australian study, quoted in the University of Oxford paper, has found that:

“Regardless of socio-economic background, parenting or inter-parental cooperation, shared overnight care of children under four years of age had an independent and deleterious impact.”

The Oxford researchers point out that, ironically, legislation promoting shared time is most likely to be directly applied where shared time is least likely to be beneficial for children.

In my experience, most parents are eventually able to reach an agreement between themselves, or with the assistance of a good mediator. Some cases do end up in the courtroom,however, and it is those cases where legislation is used to determine the arrangements. When parents end up in court, there is likely to be a high level of conflict between them, and it may be difficult for a shared care arrangement to work in practice.

This said, there are acknowledged flaws with the current system in England and Wales. These include the court backlog and the length of the court process. These can sometimes prevent a parent from seeing their child for weeks, if not months, through no fault of their own.

When a relationship ends and the parties have children, parents have the added stress and anxiety of dealing with arrangements for their children. They need to agree arrangementsfor contact,which allow both parents to play a full part in the child’s life. In some of the saddest cases, parents may use their child as a weapon to try and hurt the other parent, by not allowing that parent to see the child. This is often in the initial stages of separation,when emotions are running high and the parent is struggling to come to terms with the end of the relationship. They cannot, at that time, see the impact that their behaviour has on the child.

Although there are exceptions when a child may be at risk of significant harm from the other parent, in most cases it is wrong to prevent a parent and child from having contact. However I am not convinced that the solution is for the legislation in the mould of the Australian model, where the “presumption” or starting point is shared care parenting, with the child spending an equal amount of time with each parent.

Shared care arrangements on a 50:50 basis often mean that a child has to move between two residences, usually splitting the school week in half.  For such an arrangement to work successfully, the parents need to co-operate and communicate with each other. For this reason, such an arrangement is most likely to be successful where the arrangement is agreed between the parties without the intervention of the court. It will only work if the parents are child-focused and co-operative.

Although I believe that it is important for a child to spend time with both parents, I would argue that it is the quality of the time that is important, not the quantity. Under the Children Act 1989, the welfare of the child is the court’s paramount consideration when dealing with arrangements for residence and contact. The court is guided by the child’s welfare, rather than a presumption of the parent’s entitlement. It is my view that any legislation should be child-focused, not parent-focused.

Two Private Members’ Bills are currently before Parliament, tabled by Brian Binley MP in July 2010 and Charlie Elphicke MP in March 2011. Mr Elphicke’s Bill requires courts to operate under the presumption that the rights of a child include the right to grow up having contact with both parents. The purpose of Mr Binley’s Bill is to create a legal presumption that shared parenting orders enhance a child’s welfare, unless certain exceptions apply.

I agree that it is important for a child to spend time with both parents,who should consult one another about all major decisions in a child’s life. But isn’t this already provided for under the Children Act 1989, with both parents having “parental responsibility”?  Both parents should be present at parents’ evening, school plays and so on. They should both be able to spend quality time with their child.

My concern is that if a child is ordered to spend an equal amount of time with each parent, irrespective of the circumstances in most cases, that is not “shared parenting”at its best. Rather, it is treating the child as a possession and dividing him or her in two.

Mr Binley’s Bill is to have its second reading in House of Commons on 17 June 2011, and I shall be interested to see if the University of Oxford’s study provides Parliament with any food for thought.

Kelly Briggs is a solicitor at Stowe Family Law’s Hale office. A Resolution Accredited Specialist in Advanced Financial Provision and Domestic Abuse, she specialises in all areas of family law including divorce and resolution of financial issues. Kelly has experience of high net worth cases and also deals with issues involving children, including contact and residence disputes.

Author: Stowe Family Law

Comments(18)

  1. Rhys Gwynn says:

    It is all too easy to trot out that quality of time is more important than quantity. With respect, such comments often come from those who have not had to endure the agony of having limited contact time which results in having to try and do everything one would have done in a more relaxed way with the child under equal parenting in perhaps half or a quarter that time. The quality of that short time together soon gets worse.To then say that one should not try to squeeze in everything is to deny the child the full benefit of that parent’s contribution to his or her upbringing. That is specifically against the best interests of the child and the child’s right to fully benefit from both parents’ influence under the UN Convention on the Rights of the Child.

    Add to that the largely unresolved matter of internal relocation, and quantity of time can soon wither away after taking in the long periods of travelling that generally disproportionately befall the non resident parent. Seemingly, all it takes for relocation to be granted is for a parent, regrettably nearly always the mother, to state that she wishes to be nearer to family. That statement is rarely, if ever, tested in court. If seeking family help implies an inability to cope with the child’s daily upbringing, or a desperate need for emotional support, it is arguable that the other parent should be allowed a greater share of the parenting if that is consistent with the child’s wishes. If it does not imply this, and that the mother justs wants to be nearer her family to satisfy some personal desires – nothing to do with the children’s wishes, why on earth do courts cave in so readily to such selfishness? Children’s happiness is not locked in direct proportion to the wellbeing of the parent who wishes to relocate, as many judges seem to believe.

    A presumption of shared residence clearly does not preclude other forms of contact order. However such a presumption would place the onus on the would be primary carer to argue why anything other than equal parenting would better serve the child’s interests, most particualrly when the child has already expressed a wish to be parented equally by both parents.Currently, it is the other parent, generally the father, who must plead in court why he should be an equal part of his child’s upbringing as if his equal parental status is in dispute from the outset. Judges’ conduct of denigrating the character of the father and embellishing that of the mother in order to justify residence and contact orders is a part of the legal process that has been hidden away for far too long.

  2. Steve says:

    “Kelly Briggs is a solicitor at Stowe Family Law’s Hale office. A Resolution Accredited Specialist in Advanced Financial Provision and Domestic Abuse, she specialises in all areas of family law including divorce and resolution of financial issues. Kelly has experience of high net worth cases and also deals with issues involving children, including contact and residence disputes.

    Says it all really……… presumption of 50 50 would mean kids get care from their dads and mums and no arguments and bitter disputes would / could start….. so less fees for lawyers.

    It is only the established academics (Oxford researches like Mavis Maclean who is also a qualified lawyer) and legal professions that argue against what most people think perfectly reasonable; that a child can live with both parents after a split equally…..that neither parent should be able to exclude or largely keep the kid(s) from being with them…… which is what happens now. (usually the mum gets it all bar a day a week). This leaves the child with a broken relationship with dad that can never be maintain with so little time, it is impossible.

    So the legal profession will not move against the status quo as it brings them a lot of fees.

    And there is also research that shows that the Australian system is working well, along with the Swedish, etc…… whose countries appear near the top of UNICEF child well being, compared to the UK which is far behind, near the bottom. This research ‘review’ is from the people who lost the argument before the change and so is a biased reading.

    Sadly this ‘gravy train’ has been going on for too long, and the recession is the real motivation behind the changes as the government can no longer pay for the huge cost of the current system. Unfortunately, the usual suspects will no doubt scupper any real change and future generations will be left to be brought up essentially not knowing one of their parents…….. all the real long term research shows that is the fundamental thing that damages a child……. you only have to look at ‘Broken Britain’ with the huge rise in single parenting and the way in which the whole benefits system is administered to see only one parent keep the child…it’s the practical way on managing things……but not the right way.

    Having both parents around and playing a full role in their child’s life is the single best indicator of the child doing well.

    The courts and the law seem hell bent on preventing this being the norm in cases where one person seeks to prevent it due to their belief that it is their child only. The argument that 90% do not come to court, it is only 10% who cannot ‘sort it out themselves’ is a misnomer, as 1. Most fathers have to give up going to court due to the lack of money that one has to have in order to try and gain time with their child and so give up and take the one day a week or two days a fortnight and are advised they will not get anything more as the court will order just one day a week or two days a fortnight…..that is no way to give a child a continued parentage. or 2. The father agrees to the less time due to their circumstances of work, etc.

    But when a father wishes to be a father for more of the time, when the mother disagrees that is it, there is no other choice than court……however futile the courageous 10 % get vilified and treated like a criminal.

    Many dads, and their relatives on that side are missing out on their child’s life, and most importantly, the child is missing out on all that love and support.

    Equality is fair…..for the child, I can’t think of any other area (apart from dictatorships or old discrimination) where that is not deemed the basis on which civil society should operate. Currently inequality is operating for the mother to save her emotional state of mind when giving up time with the child; that is at the root of this and until the law owns up to this, and the modern way we live with both parents tending to work, both spending time with the kids, both adding hugely to the child’s ability to flourish, then we shall be left in this appalling stasis.

    This is from an educated father that had to go to court to get the ‘usual’ for a dad whilst facing the ‘usual’ false allegations ….which were proved unfounded. So now very poor, struggling to keep afloat, but at least my kid knows me. Perhaps they would have a better start in life if it had not cost me many 10’s of 000’s in court. In fact if in law there was a presumption of shared parenting, not only would my kid not be suffering the financial cost, but they would not be becoming a little bit more distant by the day the enforced five days of separation weekly are taking their toll.

    The law review, I fear will not go far enough and leaves definitions very wide…..”meaningful relationship” for example can translate into letters, cards, etc. Definitely one for the dispute (fee earning) pile.

    (PS. And before anyone says, of course if there were any proven violence or other danger then yes you could rightly stop any parenting time……..that is for the rare exceptional cases in which that happens…….do not tarnish all parents or dads with that brush.

    Also, there is plenty of research that shows that there is more danger from harm in the single resident parent scenario than in the shared parenting environment… as the latter is more transparent, there are more people that will interact with the child and so more avenues for any problems to be picked up.

    Figures on domestic violence are more even….. where commonly media and research reports males as the sole perpetrators… which is just not true.)

    (PPS. In family court cases, collaborative law should be used, there are too many miss-communications where the ‘sides’ lawyers talk (and other involved bodies) whilst both parties have to wait wondering what is being said…..that does not work just prolongs things whilst there is no chance to thrash things out.)

  3. JamesB says:

    Can’t see how anyone can argue anything other than shared parenting as a presumed starting point where there is a caring and good mother and father. Nothing else makes sense.

  4. Judy Park says:

    Conflicted parents are the problem. Whatever contact arrangements are made children will adapt and thrive where the parents are polite and helpful to each other. Shared parenting must be a nightmare for children when the parents are in conflict.
    Imagine being told as an adult that you had to live in 2 houses and by the way your respective flatmates are going to fight over you all the time.

  5. Tulsa Divorce Attorneys says:

    Shared parenting is a great idea for ex’s who can make it work, but post-divorce conflict has a detrimental effect on the children’s emotional and mental well being.

  6. Yvie says:

    If shared parenting was a right by law, surely there would be less conflict between the two parents.

    Frequent Court appearances with one parent, usually the father, having to plead for meaningful contact with his children until he runs completely out of money, is not conducive to a good working relationship between the two parents and certainly not in the best interests of the child.

  7. Marilyn Stowe says:

    Yvie:- I agree and when ‘custody’ was part of English law, frequently fathers fought for a joint custody order which made them feel they were playing a legally recognised role in their children’s lives. Now there is no such concept in law and parents are simply expected to deal with residence and contact.
    How would you define shared parenting?

  8. Yvie says:

    Hello Marilyn – shared parenting to me is when both parents get an equal chance of playing a meaningful role in their children’s lives preferably without the conflict of going through the Courts, which is stressful for both parents and bad for the children if they pick up on this. This would include sharing everything that the parents would have provided for the children when they were a family. Where it is practical I think the shared care should be broadly equal.

    The children would be reassured that they have two parents and that they have a home with both of their parents. Absolutely vital, I would have thought in cases where the children are a little older. Both parents can be involved with their children in all aspects of their daily life, caring for them, cooking for them, helping them with their homework, looking after them when they are sick and attending school functions and parents’ evenings with them. This will ensure the children know that both parents are fully committed to them in every way and will always be there for them.

    With so many mothers pursuing a career or having to take on full time employment out of neccessity, many fathers are now involved in the day to day care of their children, school runs, getting them ready for school, cooking for them, etc. The days when dad came home and mum put his dinner on the table are long gone for most working families.

    I have come to realise that shared parenting works best when the two parents can work together. Unfortunately this is not always the case, but the most important factor is that the children have the right to have a full and close relationship with both parents and the Courts and those concerned with the welfare of children, should do their utmost to ensure that this is not denied to them.

  9. Marilyn Stowe says:

    Very wise and thank you very much. Do you think that parents should have rights?

  10. Yvie says:

    I am not sure that ‘rights’ is the correct word to use in connection with shared parenting Marilyn but parents are only human !

    I see this more in terms of ‘committment’. If both parents want to commit fully to their children, they should be allowed and helped to do so, preferably by law.

  11. reader says:

    A presumption of 50/50 and shared parenting does not mean that no arguments and bitter disputes would / could start. I don’t think anyone WANTS to throw money at lawyers. Cases often have other elements to them. Parents will sometimes have different communication styles and ways of living. To one parent, being on time and being neat is important. To the other, it might not matter so much. They may not agree on who pays for a doctor visit and when the visit is merited. One parent may be appalled at the other smoking pot, or drinking, or the influence or history of one parent’s boyfriends/ girlfriends. They may have religious lifeways that are different. They may have relocation issues. In my case, for instance, the father forgets constantly and does everything at the last minute. This include his missing school functions which I would be happy to attend in his absence if he can’t be stuffed, and refusing to plan more than a few days ahead (which stuffs up my calendar). If he doesn’t want to answer because it is something he himself would have to cough up, he won’t. If he wants something for himself, he’ll barrage my phone, e-mail and cell with demands. He doesn’t consider water safety important and refuses to pay for swim lessons, in an island nation surrounded by water. There are medical and financial decisions to make for the child. If the mother thinks braces are warranted and the father doesn’t, and they each find an orthodontist to support their point of view, what happens with the child? There are educational decisions to make. What if a child is being bullied and one parent wants to move the child to a different school? Where should the child spend vacations, with which relatives? Myriad of child-rearing choices to be made, and if the parents disagree substantially, this is bad for the child. Shared parenting only works when both parents have the same goals and ways of parenting. The conflict is worse for the child than spending most of the time with one parent, IMO. Quality over quantity.

  12. Joy Spence says:

    This is a topic everyone has very strong views upon. There should be no presumptions made in favour of a certain order should as shared care or any other order. Each child is an individual and their own individual personality should be taken into account. There is no presumption of the mother having more rights than the father, the decision is made in light of the welfare check list and upon consideration of who has been looking after the child most and the effect that any likely change will have upon the child. It is appalling when a parent prevents a loving parent from having contact. Presumptions should not be made every child and situation should be taken into consideration and dealt with without a presumption of shared care or any other s8 order.

  13. dependantdad says:

    I have shared care of my son, 50% of the time and pay equally for everything including school uniform, dinners etc but still his mother demands CSA payments even though she earns in excess of me and her household income before csa and Child benefit is at least £25k higher than mine.

    This e-petition is to try and make the government change this unfair and biased arrangement.

    https://submissions.epetitions.direct.gov.uk/petitions/66145

    Thank you

  14. Luke says:

    Is 50:50 residency sharing fairer for fathers overall ? Undoubtedly.
    .
    My problem with it is that generally I don’t think it works for the benefit of the children – I’m not saying it can’t work – I’m sure in a minority of cases with full cooperation of both parents it sometimes does, but ON AVERAGE I think the kids will do much better with one base.
    .
    I have seen such an attempt first hand and all that happened was the kids were being damaged as a result.
    Do the fathers in divorce generally lose out in this regard – yes – but if you make the wrong choice of partner and have children with them and then split up there WILL be consequences .
    .
    So my opinion is that residency for one parent and regular contact for the other is the best that generally can be made of a bad job – but that contact MUST be enforced.

  15. vera jones says:

    My son has had a shared residence of his children since 2009 and it has worked very well so far. The boys are now 14 and 10.

    Importantly both parents reside fairly close to each other, with the schools being roughly in the middle. They manage to communicate infrequently but reasonably civilly, usually to change weekends etc. to suit their circumstances.

    The most important thing, in my opinion, when a father has a shared residence of his children, is to make sure that the children are offered a complete home. By this I mean that everything that the children need is available to them at the home, such as a separate bedroom where possible, all clothes, shoes, pyjamas etc., as well as the usual things that children like to have around them, such as x-box, games etc.

    What I think is unacceptable however, is for the children to carry plastic bags of clothes between one home and the other. They should be able to move quite comfortably from school, from one home to the other having everything they need ‘in-situ’.

  16. crystal says:

    My daughter has been divorced now for a year, but childcare arrangements were put into place two years ago. Father wanted 50/50. Cafcass’s only involvement was a ten minuter telephone conversation with each parent. Father had left marital home and moved into rented accomodation. He literally dragged the children screaming out of the house. They were 23 months, three and five at the time. It was not as if had helped in their care when he was at home, as he was always out. Although he earns £75,000 per year, she had to go to CSA for them to collect money for the children from him. The Courts agreed to the boys staying with him 9 nights out of fourteen, in spite of my daughter wanting to have them full time, with daily access by the father.
    Two years on, the boys are very unhappy. All have been to counselling, but they still hate going to their father’s. They can’t understand why my daughter makes them.
    He does not play with them, and they tell me they are bored. He will take them to a playcentre, (too young for the boys now) where he sits and texts his girlfriend. He does not listen to them read; does not play games with them; does not encourage the older one to do his homework. Will not take them to outside school activities. My daughter fits in football, swimming, tampoling, cricket, with our help – all fitted into the only two days )Monday & Tuesday) she has them every week. He is very possessive of the time he has with the children – not even letting my daughter see the children on their birthdays. He will not be flexible with days. HE DECIDES on school holiday arrangements (50/50 by the Courts). He objects if she attends a school event when it is on ONE OF HIS DAYS. He buys them inapproriate DVD’s. The now five year old is allowed (even encouraged) to watch a DVD (for 12yr old and above) in his bedroom. The now nine year old was given a Game for aged 18 and over for his birthday. He will spend money buying games to play in their rooms (two have TV’s in their rooms) for them, presumably to keep the children out of his way.. He only lives in his house on the nights he has the boys – he spends other nights with his girlfriend 40 miles away. This means that if he forgets to give the boys PE clothes of something they need for school – they don’t get it until he is back in his home several days later. Court told him to allow mother to ‘phone boys on Saturday nights – he often switches his phone off.
    He does not cook – only to heat Pizza. The boys live on Pasta cooked in a saucepan – with vegetables & no sauce; baked beans on toast and breakfast cereals for their tea. He shops on the way home after picking them up from school. He is very generous at buying them sweets and Coco Cola.
    .
    He should tell my daughter if he is going to take them out of their home town but at New Year he took them to friends of his girlfrield to stay overnight without telling my daughter. He pushes all of the bounderies.
    . We don’t know how to deal with this man who is totally controlling and inflexible. The children are just possessions to him. Does anyone know the best way of dealing with this situation. If my daughter goes back to Court, how much is it likely to cost? The whole divorce has been so expensive so far. My daughter’s divorce solicitor takes the line of concilliation – but sadly this is not a man who will negotiate

  17. joseph muita says:

    shared Parenting: Shared parenting protects children’s best interests and the loving bonds children share with both parents after separation or divorce;

  18. M says:

    I was really interested in reading this: I’ve been the main child carer for almost 3 years while my now ex has studied and worked to obtain a position as a Paramedic. I’m about to move back to where my family is based (an hour away) as I’m studying a PGCE from September and would find this incredibly difficult to do without regular, dependable support having 2 children to support.
    My ex isn’t a parent of my 1st child, but is of our second, however he did act like a parent to my son. I disagree that shared parenting in our case would work because of the following:
    • My ex by virtue of his shifts has varying shifts each week. This means the days our daughter sees him would be ever changing.
    • The point above would have an impact on the relationships our child could then form with her wraparound carer and friends at school and in our neighbourhood.
    • My son would constantly be left behind- the ex has made it very apparent that he is only interested in pursuing contact with our daughter. Therefore, my son would have to suffer regular, repeated rejection while our daughter would lose the security of her brother.
    • Our daughter is only 4 & research indicates that shared parenting is more appropriate for older children.
    • My ex clearly will not have all the school holidays off, whereas I will. What sense would it make to then try and divide school holidays evenly between us?
    • Since my ex left, he has seen the children for 1 after school and 1 weekend day each week,(he’s done a handful of overnights in friend’s houses which hasn’t helped the stability of the kids) so my proposal (which works with his contracted shifts) is for him to have just our daughter on the alternate weekends when my son visits his Dad, and to do 1 after school each week either with both children or just our daughter.

    I honestly cannot see what is wrong with my proposal, however it’s fair to say he went nuts when I made it.
    Could anyone suggest any other workable plan? Or point out where I’m going wrong?
    Thanks
    M

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