Of all the hundreds of topics we have discussed on this blog over the last nine years, shared parenting after divorce is perhaps the biggest button pusher. We receive a flood of forthright comments whenever we write about this very emotive issue.
There are many angry commentators out there convinced that the family courts are unfair to fathers and they tell us so at length. If I have understood it correctly, their view appears to be that shared parenting arrangements after divorce should be completely 50-50 and that any deviation from this is a violation of their rights as parents. Whether you believe this philosophy to be correct or not, the fact remains that English law actually does not give parents any ‘rights’, as hard as many may find that to believe. Old family law staples like ‘custody’ have been consigned to history, even if journalists continue to use the term as convenient headline shorthand.
Instead we have child arrangements orders, which set how much time a child should be spend with each parent post-divorce, and most centrally, the Children Act 1989.
This key piece of legislation clearly states that the central focus of all family disputes involving children should be their best interests. If any party in a parenting dispute has rights, it is the children themselves.
The family courts do now have an operating principle – ‘a presumption’ – that these best interests are best served by the involvement of both parents. But this is certainly not absolute and very much dependent on the circumstances of each case.
This is a very emotional topic – as a parent myself I can certainly understand the strength of feeling expressed by many. But I would urge all the campaigners and commentators out there to remember that the welfare of each child underpins the system and that first and foremost a child’s welfare starts with the relationship of the parents to each other. There is no other answer.
I recently did a video on the subject and you can read the transcript below:
I have been writing this blog since 2007 and there is one subject that seems to cause eruptions every time we touch on it, and this is in relation to shared care of children post family breakdown. There is absolutely no question that when families separate, parents are really quite shocked to find out that they don’t have any rights towards their children, they have parental responsibility but they don’t have rights enshrined in law. The only law that applies to the dispute between them that might arise, and for many may I stress it doesn’t arise, but for those where there is a problem the law is the Children Act 1989. The test is this; the welfare of the child is paramount so whatever a court thinks is in the best interest of the child is what it will do.
Now, in 2014 a presumption was introduced into law and the presumption stated that in a child’s life the welfare of the child is petuned to be best served by the involvement of both parents. That is on that basis that it would be safe to involve both parents and without specifying any strict division of time. Some groups take the view that division of time should in fact be enshrined in law; that fathers and mothers should equally be entitled to shared care of a child and that if you wish to depart form that, you have to show very good reason why. We in English law don’t have that and what we have is a court which will look at all the circumstances and determine what is in the best interest of the child. Historically it developed in this way before the beginning of the twentieth century; fathers had custody pf the children. In the 1920’s it changed and eventually mothers who stayed at home typically while father went out to work were entitled to have custody of the children because custody at that stage still existed. Custody was abolished in 1989 under the Children Act and now there is no such thing. What we have now is the Child Arrangements Order where the court specifies which parent a child should be with, to live with and spend time with if they cannot agree it themselves.
Sometimes as a practitioner I cannot believe the level of hatred that can exist between parties who were once happily married. I am pleased to say that I don’t actually normally act for that kind of person, for some reason, and I think it is because I might not hit it off with that person too well, I read more about them in the press and I read with great sadness about how parties can be at each other’s throats and get to the stage where parents feel it necessary to climb on the roof as parents did last week on Jeremy Corbyn’s house to protest about the arrangements for their children. It is absolutely shocking when mother or father is separated from a child because as a product of a happy marriage myself and I hope having brought up a child in an equally happy marriage where both parents inputted, I can well understand the benefits that having two parents can bring to the welfare of a child.
Personally, I am all in favour of shared care for a child, but that is not the law and all I can do is urge parties who are at each other’s throats to do everything they possibly can to try and resolve it because it is not them that suffer, it is a child and it is a cycle that can repeat itself later on in life if a child thinks that that’s the norm. Well it isn’t the norm and I think the best thing that parents can do is look at themselves. Don’t blame the law, don’t blame the courts, look at themselves.