Shared parenting presumptions

Children|Divorce|Family|Family Law|September 10th 2012

We all start with two biological parents at birth and this two-way image stays with us throughout our lives, whatever our individual circumstances. Whether we live with those biological parents, with adopted alternatives, or with some mixture of the two in surrogacy, we may lose a parent for a whole host of reasons, from the extreme (death) to the relatively mundane (an acrimonious divorce, irresponsibility). Adoption by the unattached takes some children straight into the world of single parenthood.

But most of us would agree that children having contact with absent parents after divorce or separation is an ideal and it is one which family law courts try to encourage whenever possible for the children whose lives are laid out before them. During divorce proceedings, angry mothers may need to be reminded of the father’s rights to access, or distracted, disinterested Dads persuaded of the children’s need to maintain contact.

Few would argue, I think, that this is not a good thing. Seeing divorced Dads whether during the week, at weekends or having regular chats with them on the phone helps to maintain the sense of contact and continuity, minimising the distress every child feels when their parents split up.

But should we go further than simple encouragement? Is there a place for a legislative presumption in favour of shared parenting? That was, of course, the proposal put forward in the Ministry of Justice consultation which officially closed last week. Back in June, I welcomed the proposals set out in the consultation. I wholly agreed with the following statement in the proposal, for example:

“The decisions made by family courts about the upbringing of a child are based on the principle that the child’s welfare is the paramount consideration. The benefit of ongoing involvement with both parents is already factored into these decisions, but it is not explicitly stated in the legislation that guides this process (the Children Act 1989). This has contributed to a perception that the law does not fully recognise the important role that both parents can play in a child’s life.”

The paper proposed that a new subsection be inserted into the Children’s Act 1989, stating that: “….that the welfare of the child concerned will be furthered by involvement in the child’s upbringing of each parent of the child who can be involved in a way not adverse to the child’s safety.”

I still believe, as I did back in June,  that this is a wholly sensible suggestion, as it would enshrine clearly in law the importance of parents in a child’s life – something which has been wholly overlooked in my view and which has left a vacuum for fudge and exploitation by the angriest of spouses.

Meanwhile, the Law Society remains as firmly opposed to the proposals as ever, despite saying they welcome the government’s overall interest in cooperative parenting. Its official response to consultation is brisk:

‘The welfare of children must always come before the rights of parents and no legislation should create or point to a perception that there is an assumed parental right to substantially shared or equal time for both parents.”

The Society remains convinced that the introduction of shared parenting legislation could put children’s safety at risk, by moving the central focus in assessments of a child’s welfare away from the need to protect them from harm towards an assumption of equal access.

I am no nearer to understanding this point of view than I was back in June. “In a way not adverse to the child’s safety” is pretty unambiguous, so how could inclusion of the new subsection be to the detriment of children? This Law Society’s stance still makes no sense to me and simply does not reflect my experience of the thousands of decent parents who have passed through my doors, genuinely wanting the best for their children.

Clearly the Law Society is not going to change its views on this surprisingly contentious issue. But then neither am I

Author: Marilyn Stowe

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

Comments(19)

  1. George Piskor says:

    The Law Society response is an exercise in equivocation unworthy of an august institution. While acknowledging case law already allows shared parenting, the response nonetheless takes the position that explictly allowing shared parenting would be counter-productive.
    The underlying assumption by the Law Society is that the welfare of the child is mutually exclusive with considerations of shared parenting- an affront to common sense , UK families, and children who inherently do not wish to be cut off from either parent.
    The fig leaf of logic is a sorry attempt by the Family Law Children’s Law Sub-Committee to hide the 800 lb elephant roaming in the Law Society, namely the transparent “hidden” agenda is to preserve child and spousal maintenance for sole custody overwhelmingly provided to mothers. Using the feigned concern that changes to legislation may increase parental rights at the expense of the welfare of the child, the embedded ideological feminists within the Society , in fact, openly favour sacrificing the welfare of the child at the alter of radical feminism to enrich mothers under the guise of “feminization of poverty”.
    The Society brings itself , its members,and the legal establishment into public disrepute by not taking a principled stand against this hypocrisy propounded by a radical but disproportionately influential feminist minority embedded within.
    The deeper issue for the Society is to openly confront the reality that the welfare of children is a proxy to pursue the perverse economic incentives provided by poorly structured child and spousal maintenance regimes. Once perverse incentives are removed, shared parenting will automatically cease to be a legal gambit.

  2. Paul Randle-Jolliffe says:

    Dear Marilyn
    Whilst I agree with the main thrust of your blog I am some what surprised by your saying:
    ” Seeing divorced Dad every few weekends or having regular chats with them on the phone helps to maintain that sense of contact and continuity, minimising the distress every child feels when their parents split up.”
    Every few weekends? Can you explain how one “parents a child” by seeing them every few weeks ends, and why the presumption that it is going to be only dad who is the contact parent?
    Whilst this may be how it is in the fudge factories of family law this is not actually in any child’s interest unless it is expressly not in their interests for some other reason.
    In fact it is highly damaging to a child!

  3. Observer says:

    This is the same Law Society that has repeatedly failed to investigate and prosecute family law solicitors for contempt of court and serious misconduct.
    What we have here is worse than reactionary, and it is about time that political motives are seriously questioned, and the the Law Society overhauled.
    The problem with the term shared parenting is that it basically means dad ‘shares’ his income in exchange for a couple hours every other weekend. It seems that the Law Society, wants to make it even worse than this by opposing that definition of shared parenting too.
    Of course, there is also the fact that the Law Society is verging on gender hate crime when it makes the tacit assumption that one party – i.e., dads – might be unsafe to begin with. This alone should have earned rebuke from the Equality Minister long ago, if s/he still exists???

  4. Michael says:

    Firstly I would like to inform you of just how glad i am to see a legal professional who is interested in solving problems to ensure better welfare for children rather than exacerbate issues for the sake of financial gain. This is an example of an attitude which should be practiced (not just recited) by all family court professionals and if that were the case we would not have current outcomes from family courts termed as “legal” which breach European and UN conventions towards the human rights of a child and of a parent.
    Having had firsthand experience of how the process works from initial mediation, through to litigation and ultimately trial in a family court, I sadly have endured several dogmatic and impractical consequences for which there is no legal recourse. The apex where the deepest biological emotions (the love of one’s child) collide with the law should surely be an area deserving of the most empathetic and diplomatic approach by all professionals involved. It is after all similar circumstances under which wars are begun, albeit in a different context. If a country feels its boundaries are violated it considers it an act of war. People agree to go to war to protect a violation of their freedom and above this the freedom of their children (as they themselves might perish for the cause). I don’t see any greater violation to a parent then to restrict their role to parent their child. It is nothing short of grounds for an act of war.
    When boundaries are violated a person has a duty unto himself/herself and to set an example to their children, to act. The law (and indeed society in general) should have a clear distinction about what constitutes a boundary violation and a boundary conflict between parents. What school a child goes to as long as it is adequate, or what religious beliefs a child is exposed to (within reason) is a matter for the court to resolve in a civil dispute. These are boundary conflicts and most parents have them even when married.
    However most acrimonious separations involve boundary violations that have occurred which often render the relationship irreconcilable. Both parties demonstrate war like behaviour and the expectation of self restraint required to be exercised for “the sake of one’s children” especially where a parent is not a risk of harm to the child, is quite unrealistic as long as these violations continue. The primary objective should be (in all cases) to prevent further violations of either parents boundaries from occurring and you will find resolution that is in the best interests of the child. This is the objective of a shared parenting presumption and it is even more well suited to a situation between two hostile parents and it is designed as a diplomatic and emphatic approach to reduce boundary violations.
    There are 2 sides in every war. One side that seeks to control and the other that seeks to prevent being controlled. Control is the sole cause of boundary violations and it should not be given to either party. The need to control anyone other than oneself inappropriately (this can include a child e.g. Parental Alienation Syndrome) has deep routed sources and these must be addressed for consideration of the welfare of the child. Today the role of father and paternal family is alienated from the child’s life, tomorrow it might be the child’s friends, child’s teachers or anyone else who would seek to weaken the influence of the controlling parent, disabling a child from healthy emotional development and a happy life (good self esteem and all). These are far longer reaching consequences and these are not considered by the court when expunging a parent from the life of a child. This is why it must be patently pointed out that the role of both parents is essential.
    There is a clear difference between a boundary violation and a perceived boundary violation. A dependant personality seeks to control another for sake of their own inability to depend on themselves. It is clear to distinguish this behaviour with that of an actual boundary violation which has a physical impact – a denial to see a child, physical and verbal abuse, emotional abuse, these are violations. Not agreeing to bankrupt oneself so the resident parent does not have to work is not a violation.
    The government should be concerned about why we live in a society where these applications need to be made in the first place. What has driven people to be so controlling or perceive that their only recourse is to prevent the role of the other parent from manifesting? Address these problems which tear and distort the fabric of our society and you will gain efficiencies, happier electorate and happier children. Work to free people from oppressive parenting to break the cycle. Controlling parties are no more likely to mediate as mediation requires relinquishing control.
    I am frankly quite shocked as some of the gender hatred expressed (and allowed!) by women’s organisations akin to mass suggestion from nothing less than a Nazi regime, the abuse inflicted upon women by feminist groups that make them feel like less of a mother or less of a woman for wanting to share the support of a man in parenting or wanting to have a career whilst raising children. In the future these will be turned underground by society akin to anti semitism and racial crimes. But for now they are allowed to permeate society with no consequence! They are allowed to campaign openly in favour of inequality! In the recent cabinet shuffle they said women’s roles were being marginalised in government! Surely the act of governance does not require a specific gender? It requires ability which could come from either a man or a woman. Does the law propose an annual quota for shared residence dads? Surely this is not the right approach.
    Note that I do use fathers examples of victimisation, but this is not gender bias, I have just never come across a fathers group that seeks to marginalise the role of women. The court is biased. I have been told point blank that as a man my expectations from court should be lower than what my ex is entitled to. I am told that my behaviour had it mirrored hers to a 1/10th of the intensity would be perceived as aggressive whereas hers would be perceived as a concerned mother.
    Where a boundary violation is allowed and sustained it should be punishable under the criminal penal code and not as a civil violation, subject to criminal charges and it should be enforced. Examples are court orders not allowing a perfectly fit parent to BE a parent in any meaningful way, breach of court orders for contact/residence (which are in no way dissimilar to child abduction), false allegations of abuse/child welfare concerns, etc. The law society should be charged with warmongering. Its controlling parents that society must seek to educate/mitigate and whose cyclical influence perpetuates the presence of these disputes and these anti male campaigns for generations to come. Note, that violence towards the weak is already punishable under the penal code and whilst controlling parenting is also the source of this, society does send a clear message with regards to what is not acceptable.
    Finally, so as to clarify my metaphorical (or literal) comparative of war to acrimonious disputes, children should not be treated as possessions like land or resources. But war is and has always been about freedom for one party and possession for the other.
    Michael.

  5. Anne says:

    An interesting counter argument is the case from a month or so ago S (A Child) [2012] EWCA Civ 1031 where the mother was given sole residence and allowed to relocate. The father was a controlling bully and if you look at the new definition of “domestic violence” his behaviour was brutal and unrelenting even post split putting huge amounts of psychological pressure on the mother. This is a perfect example of domestic abuse and why a presumption of shared parenting can help perpetuate that abuse. This father was fixated with his rights but was flippant about his responsibilities. For example, he was quite obviously able to pay for legal representation but only £75 per month in child support?? There was a catalogue of controlling and undermining behaviour that I fear starting from a presumption of shared parenting will just allow psychological bullies to persist in their abuse.

  6. Michael says:

    Thank you Anne….I think you have reinforced the point I just made. Your views and the way you presented them would only perpetuate parents to continue to war over their children and DON’T consider the effect it has on the child. Your example, apart from being clearly subjective given your distasteful and clichéd language regarding the father, demonstrates that sole residence does not in fact work. Your response was so well timed as it just popped up (quite un intentionally I’m sure) to clearly demonstrate the mechanisms involved in just how these dreadfully damaging situations arise. You just don’t get it do you?
    The reason there is so much hostility in this case is most likely because both parents are at war. Both parents are angry and aggressive and both parents love their child very much but cannot put their needs above those of the child, the mother to the point of violence. I read this case and it clearly says that the mother who was psychologically unstable and aggressive should not be “singled out” as this would not be the whole story. They then go on to single out the father who was not in fact violent. There are so many ridiculous contradictions in this case culminating in the court of appeal to rely on authority (which is a pile of rubbish a big as Payne vs Payne was anyway) with regards to the judge’s findings.
    The way you presented this case was so one sided. Its not a counter argument at all. Its a glaring example of how the court clearly applies double standards towards males, how it can uproot a child with ease and remove a parent from its life, how it can only further encourage a parent to seek more and more desperate measures to retain a role in his child’s life to ensure their very real concerns for the safety of their child are concluded as true or false.
    I am deeply saddened by the outcome in this case. It is a complete travesty. I suggest everyone who read my earlier post read it. It is an abysmal example of how our courts continue to fail children all over the country and will continue to do so if we don’t do something about it. The mother’s allegations stuck and despite the fact that she chose to use violence in a situation where the father did not, we have people making her out to be a saint and the father to be a villain. It is a disgraceful and immature approach to a matter of such profound importance to a young child. If the mother’s issues were so miraculously sorted out with CBT why then could the father not be afforded the same? Uncanny how the mother was so able to “switch off” her anger at the father whereas the father could not. Also if anyone does not perceive the indecisiveness of “a move to Norwich or not” as anything but toying with the father, i’m frankly not surprised he wasn’t even more angry!
    The base line is that both parents were in need of intervention which unfortunately social services once again did a crap job of. 2 core assessments means that they passed over the first time over a situation where a young child was exposed to violent behaviour. Lawyers always use the “i was only violent because he made me” excuse. I cant see anywhere the father having used violence against the mother. There is no question these parents should separate. But there is also no question that this should have been a shared residence order which over time would have either dissolved the animosity and anger which regardless of “presentation” exists amongst both parents and will continue to perpetuate. It would have also afforded time to demonstrate which parent was really the victim and which was really the abuser. Not to mention in this case the S7 report was also not agreed to by the judge. What’s the point in having ANY evidence – just sentence the man already.
    I really don’t want to get into the mens rights and womens rights argument but due to the vulnerable behaviour of the parents and frankly the even worse job the judge did with regard to making findings in a fair and balanced manner, another child has lost out on a situation which with the correct understanding and support could have been diffused.
    Not to mention that at some point when in the future the child challenges the mother in the same way its father did, she is liable to become violent towards the child since this is an acceptable response to her…am i the only one that is concerned about that?
    This hits at the heart of the problem that men haters such as Anne are trying to perpetuate. It is immature and it is anti children (not just anti men).
    She reinforces the case that something has to be done to address the real problem of warring parents in a diplomatic manner that can REALLY benefit children as opposed to taking them out of the frying pan and throwing them into the fire.

  7. Ann says:

    This is in response to the above comment by Anne. This case is well known to me and i knew what went on.You on the other hhand just quoted the allegations the mother made against her partner which was uncontexted. You forgot to mention the mother was physically violent towards her partner during the the relationship and threatened to take baby away and he will gave limited contact because she said its the norm. If the mother had allowed father to have shared arrangement in the first place the father would not have gone to court. With regards to paying £75 this was what the csa ask him to pay. YOu are labelling the father controlling when in fact it is the itjer way round. So please dont just believe everything you reaffirming

  8. Jim says:

    The norm should be shared custody, period. Sure there are situations in which the parents don’t work well together, but the BEST interest of the child IS to have both of his/her parents. Parent who fight for sole custody are more often than not simply fight with the other parent, trying to inflict pain or punishment upon the other parent. Yesterday I listened to a conversation between 2 women in front of me in the grocery line) giddy with belief that the judge in one of their custody case was going to “strip my Ex bare of his assets & kids”, “he’ll see his kids less than the janitor [at school].” So sad for the dad. BUT even worse for the kids.
    Who would want to have a mother like that, who’s more intent upon exacting pain than encouraging the love & healthy developmental needs of her children? Sad.
    Sad also that the government enables this behavior. It’s not justice. The best interests of the defenseless are not protected. It’s state sanctioned family violence.

  9. Toots says:

    Can you please clarify if fathers do or don’t have an automatic right to contact… I read and have been told they do but hearing on This Mornings program’s its stated that they don’t. My kids have regular contact but I want to be clear on my rights as a mother if I can say no to extra date requests which are done so by my ex which he does as and when it suits him. I worries me I am in breach of some law!

    • Marilyn Stowe says:

      Hi Toots
      Unless your ex has a court order then he has no automatic entitlement to see the children. Parents don’t have an automatic right to contact. So if you don’t agree with what he wants, he has to apply to the court and the decision is made entirely on the basis of the welfare of the children, ie what is in their best interests, and not what he (or you) want. Realistically it would be best for you to reach an oversll agreement, because the court would generally consider it is in the best interests of the children to see their father and have a good relationship with him. Equally it is in their best interests for him to stick to the arrangements.
      Hope this helps.
      Best
      Marilyn

  10. Toots says:

    Yes thank you.. Why is it we are lead to believe they have a legal right? So many law firms say so. I set up the original contact which has worked for years but when he wants to bully me he demands everything he wants and threatens court by a solicitors letter. There is no contact or residence order.. Just that the kids live with me as the Judge said they were best due to age etc.
    May I ask another.. An I ok to take them abroad fur a couple of nights without telling him?
    Many thanks for you response..

    • Marilyn Stowe says:

      Toots
      As for taking the children out of the country, this is strictly regulated for obvious reasons, child abduction being an offence in this country.
      So if you were married to your ex, or you werent married to him but he has parental responsibility for the children, then you need his consent or a court order:- unless you have a residence order for the children, in which case you can take them out of the country for up to 28 days without needing his consent or a court order.
      Parental responsibility is automatically acquired by a father if he signed a child’s birth certificate after 1st December 2003 and even though he wasn’t married to the child’s mother.
      Regards
      Marilyn

  11. Bruno D'Itri says:

    History teaches us that powerful and wealthy “special interest groups” have direct and influential access to Government officials and often get their own way, irrespective of what is actually ‘good’ or ‘just’ for society.
    The raison d’etre of the Law Society is to serve the interests of the Legal Industry. Of this, there is no doubt.
    The Law Society is perfectly aware of the extensive and compelling scientific evidence demonstrating, beyond all reasonable doubt, the significant benefits for children of remaining in meaningful contact with both parents post separation or divorce.
    However, the Law Society is also very aware that Shared Parenting legislation is likely to be highly damaging to the interests of its members, as profitable litigation would significantly decrease.
    The Law Society thus faces a real dilemma…
    Should it stand up for the interests of children and support Shared Parenting legislation or, instead, should it stand up for the interests of its members and oppose Shared Parenting legislation?
    It has opted firmly for the latter, and is using all of its sophistry and guile to try to convince our Government that Shared Parenting legislation will be harmful to child welfare.
    Some Government officials, such as Alan Beith, have been taken in. Other Ministry of Justice officials have also been seduced and have stated recently that Shared Parenting legislation is NOT actually expected to alter outcomes in family justice cases. The sole purpose of any new legislation, they have said, is simply to try to dispel the widely-held (but quite unjustified) ‘perception’ of anti-father bias in the system!
    I am pleased that at least some independently-minded and genuinely honest family lawyers, such as Marilyn Stowe, are able to apply child-focussed reasoning to the debate.
    As for the leaders of the Law Society, we must do ALL we can to expose their shockingly immoral and self-serving behaviour.
    Bruno D’Itri

  12. JamesB says:

    I have just received an e-mail from my ex advising that the children can’t see me for a month due to sleep overs, winter camp, birthday party, and her Mum visiting.
    This is in breach of the contact order we have and against the children’s interests. What can I do about it?
    Answer, absolutely nothing. The law is a joke on this subject and is an absolute disgrace. If I spend £200+ to take her to court, I’ll probably end up with less contact. It sucks.

  13. Neil says:

    from what I can see from the Parliamentary web-site it appears the Bill aimed at amending the 1989 Children’s Act has been withdrawn. Can you provide some background on why this has happened and is there any likelihood of this being resurrected?
    By the way I’m amazed that you’re extolling the virtues of the Scottish family law system. My own personal experience is still that an embittered former partner can still prevent a reasonable level of contact between children and their dad and I’m sure I’m not alone in that experience

  14. Streaky says:

    Dear Marilyn,
    Will the new amendment to the act looking into split parents that already have shared parenting but one is forced to pay maintenance and pay 50% of costs as the government recognise only one resident parent (the only one that can claim child benefit)?

  15. jamie says:

    even know i have a degree in working with children, the courts refused shared residence, this has given the ex a great deal of control which she uses against me and the child, this kind of controlling behaviour is extremely bad on children and is a type of abuse, with going to court over a year the courts must of seen this, i do get contact which she changes constantly to make things hard, i have also asked to take my son away for a weekend which she refused and because of non shared residency there’s nothing i can do, this would have been a very positive experience for any child which is getting denied. such a shame, not allowing shared residency just abuses children..

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