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.