Sometimes ideas for law reform persist for years, or even decades, simply because they are good ideas, awaiting their time. An obvious example of this is no-fault divorce, whose time, it would seem, has at last come. Sometimes, however, ideas for reform persist not because they are good ideas, but because their proponents are just stubbornly hanging on to them. Which is it with the idea of an equal parenting time presumption, i.e. a presumption that after parents separate their children should spend approximately equal time with each of them, unless there is a good reason otherwise?
The idea has certainly been around for a long time. I have been aware of proponents calling for it, in particular of course fathers’ rights groups, as far back as I can remember. And at one point it appeared as if the time for their idea had come. Alas for them, they were to be disappointed when the Children and Families Act 2014 only brought in the ‘watered down’ presumption that, unless the contrary is shown, involvement of both parents in the life of the child will further the child’s welfare.
Undaunted, the proponents for the equal parenting presumption are continuing to ply their idea. The latest call for the change comes from the elaborately entitled fathers’ rights group ‘Families Need Fathers Both Parents Matter Cymru’. The group commissioned a YouGov survey asking to what extent the 2000 respondents agreed with the proposal that the law should be reformed so that judges have a presumption in favour of ordering that children spend roughly equal time with each parent after a divorce or separation, excluding cases where children were deemed to be at risk. Apparently some 80% of respondents did agree, and the group are using this as evidence of the need to introduce the presumption into law.
Of course, the average ‘man in the street’ is not necessarily the best person to ask for an informed opinion, as our present political divisions (on both sides) demonstrate. We need to look rather more deeply to decide whether it is a good idea. There has, of course, been much learned discussion about the presumption over the years, perhaps most notably in the Family Justice Review, which recommended against the introduction of what it then called a ‘shared parenting presumption’. The Review was very clear on this, stating that: “The law cannot state a presumption of any kind without incurring unacceptable risk of damage to children.” As we have seen, however, the law then did go on to state a presumption, even if it was not an equal shared parenting time presumption.
OK, I could obviously go on re-hashing the various arguments for and against the presumption, but I’m sure those are already well known to many. Instead, what follows is just a few brief thoughts of my own.
The first thought is a purely practical one: many separated parents are simply not in a position to share care of their children equally. The presumption assumes that children will live with both of their parents. However, when couples of modest means separate they are simply not able to each afford suitable accommodation for them and their children. And the more children they have, the harder it will be to afford suitable accommodation. It is a simple practical fact that many children are not able to live with both parents.
The second thought is that the presumption tends to tie the hands of the courts by reducing judicial discretion. It also tends to pressure the court into making a decision it would not otherwise consider to be in the best interests of a child, for example being less concerned about possible harm that a child might suffer if an order was made requiring the child to spend time with a particular parent. Courts considering arrangements for children should always be driven by the welfare principle, i.e. the overriding principle that decisions about a child should be based upon what is best for their welfare. That principle must never be ‘watered down’.
My last thought is that it could be argued that we already effectively have such a presumption. The law, of course, says nothing in favour of one parent or the other. The starting-point therefore already is equality.
But in the end it must be true that for an equal parenting presumption to be the correct approach it has to be invariably the case that equal time is the ‘ideal’ outcome for children. After all, if that is not so, then we obviously shouldn’t have any such presumption. Is it true? I can see that there is an argument that it is, at least in an ‘ideal’ world. But there are also certainly arguments that it is not.