In news which should be welcomed by family lawyers across the country, the government has announced that it plans to legislate for a legal presumption in favour of shared parenting. That would mean, in layman’s terms, that the involvement of both parents in a child’s upbringing would become the courts’ default position and they would need a specific and clear reason to exclude one of them, such as potential harm to the child.
Of course, involvement does not mean children will automatically spend equal time with both parents, a very different arrangement which has been demanded by some fathers’ rights groups.
In its official response to the results of a consultation run earlier this year, the Department for Education sets out the nature of the planned changes. It proposes to insert a clear reference to the importance of shared parenting into the Children Act 1989.
There will be a new addition to – section1 (2A) – reading:
(2A) A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.
Restrictions on this presumption will then be set in two additional new sub-sections, reading:
(6) In subsection (2A) “parent” means parent of the child concerned; and, for the purposes of that subsection, a parent of the child concerned –
(a) is within this paragraph if that parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm; and
(b) is to be treated as being within paragraph (a) unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm whatever the form of the involvement.
(7) The circumstances referred to are that the court is considering whether to make an order under section 4(1)(c) or (2A) or 4ZA(1)(c) or (5) (parental responsibility of parent other than mother).
An explanatory note accompanying the draft new clauses is pretty clear about their function of this additional text:
“The purpose of this amendment is to reinforce the importance of children having an ongoing relationship with both parents after family separation, where that is safe, and in the child’s best interests.”
It explains that:
“The effect of this amendment is to require the court….to presume that a child’s welfare will be furthered by the involvement of each of the child’s parents in his or her life, unless it can be shown that such involvement would not in fact further the child’s welfare.”
Hooray for that. Regular readers of this blog may recall that back in June, when the government launched a consultation on possible changes to the law, I welcomed the plans, unlike many others! And these proposed amendments are all I have called for and long overdue. Here we have, finally, black and white legal recognition of the importance of both parents in a child’s life.
I still believe that the following extract from the consultation paper sums up the entire nature of this thorny issue in a very effective – and indeed – unarguable way:
“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.”
As I read those words again, I find myself thinking of the many clients I have worked with over the years who have been involved in child disputes with their former partners. Ninety nine per cent of them are not extreme and will welcome this legal recognition that both parents have an important role to play in their children’s lives, provided there is no risk of harm.
Yes, some parents are more difficult and more prone to such extreme behaviour trying to prevent former partners from having any access to their children at all . But I think these proposals could benefit even them. At the moment, English and Welsh law has absolutely nothing to say about the rights of non-resident parents and I believe it is this very void which encourages some difficult parents to go to their extremes. Provided these amendments are carried through, in the future family lawyers will be able to show the new clauses to those stubborn parents and say ‘look at the law’. The balance will be positively affected. Now the parent opposing contact will have the burden of proof to explain ‘why not’ rather than ‘why’ I believe this is fair and would encourage at least some to take a more sensible and moderate approach to parenting issues.
By contrast, Scottish law – which in many respects is far more modern, with its cohabitation law for example – already contains, in section two of the Children (Scotland) Act 1995, an explicit declaration of parental rights.
The government appears determined to push forward with the proposed changes in the face of formidable opposition from many of the great and the good within the legal establishment. Good for them.
I cannot help but wonder how the Law Society will respond to this new announcement. They have been firmly opposed to the proposals from the start, saying, when the public consultation closed in September, that:
‘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.”
That is not what I believe is intended.
I too have never believed in a strict concept of fifty-fifty shared parenting. It is impractical and can be hugely disruptive to the lives of the children involved. But these changes do not make any such declaration. Nor, I think, are they likely to promote such a perception. The wording of the new clauses is careful and unambiguous. It is very clear the welfare principle will still apply and final decisions on appropriate parenting will remain with the courts. As they should do. But both parents will at long last receive legal recognition – as they should do.