Government plans shared parenting amendment to Children Act

29 November 2012

The Government is to introduce a new clause to the Children Act making clear that there should be a presumption that both parents should be involved in a child’s life after separation or divorce.

Following an independent review of the Family Justice System in 2010-11, the Government is making a number of changes across the system, in relation both to public and private law. These are described in detail in the Government’s response to the review, which was published in February 2012 and which accepted the majority of the review’s recommendations. More information about the Family Justice Review and the Government’s response is available on the family justice review page.

In its response to the review, the Government committed to introduce new legislation which emphasises the importance of children having an ongoing relationship with both of their parents following family separation, when it is in the child’s interests. While most parents are able to make arrangements between themselves for their children when they separate, some parents turn to the courts to resolve disputes. In some cases, the dispute between parents is so deep-rooted that they lose sight of their child’s needs. In these cases, the Government wants to send a clear signal that both parents remain responsible for the care of their children when families separate. The Government plans to legislate on this area were set out in the Queen’s Speech in May 2012.

Read the proposed shared parenting clause

Read some further explanatory notes.

Read the full response to the consultation on the shared parenting clause.

 

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4 Comments »

  • Bruno D'Itri says:

    Our elected Government plans to bolster the legal right of a child to have a meaningful and on-going relationship with both its parents, post separation/divorce.

    It recognises that family law, as it currently stands, all too often fails to serve a child’s best interests in this extremely important respect.

    The Children Act (1989) rightly instructed the judiciary to serve the child’s paramount interests. It intended for there to be shared parenting.

    However, the judiciary has singularly failed to accept that a child’s paramount interests are, in the vast majority of cases, actually best served by facilitating and enforcing its meaningful relationship with both its parents.

    Instead, the judiciary remained firmly wedded to the 1960’s/70’s “single parent / primary carer” model; an approach which, sadly, contributed to a lost generation of fatherless children.

    Relocation law is a prime example: it rides rough-shod over any notion of shared parenting by placing thousands of miles between children and one of their parents.

    The judiciary’s approach is out of date and simply does not reflect the modern-day realities of 21st Century shared parenting.

    The aim of our Government’s proposed legislative changes is to make it very explicit indeed to the judiciary that, for most children in litigated cases, ‘best interests’ equates to ‘shared parenting’.

    Let us hope that any amendment to the Children Act (1989) will be robust enough to safeguard a child’s right to be parented by both its parents. Let us also remember that this issue is not about parents’ rights: it is entirely about childrens’ rights.

    Furthermore, let us be absolutely clear that Shared Parenting does NOT, as many critics would have us believe, necessitate a precise 50/50 split of parenting time. This would be highly impractical in most cases. Rather, it is expected to range upwards from 20/80.

    Another objection from the critics is that it will endanger children. Very plainly, Shared Parenting will only be granted to parents who are not a proven risk to their children. Unsubstantiated allegations made by bitter and disgruntled ex-partners – intent on using ‘their children as weapons’, to coin Sir Nicholas Wall’s expression – ought not to be enough!

    It is a very great pity that the judiciary has failed to be proactive on Shared Parenting. For example, in the case of Re D (Children) [2010] EWCA Civ 50, Sir Nicholas Wall, the previous President of the Family Division, was presented with no less than 15 contemporary scientific psychological and sociological research reports which demonstrated, beyond all reasonable doubt, the verifiable benefits for children of maintaining close and meaningful relationships with both parents. This irrefragable scientific evidence went ignored or relegated by him.

    In contrast, our Government, to whom the scientific evidence was also sent, is taking full heed. This is precisely why our elected Government needs to legislate. Child welfare is far too important to leave in the hands of a few un-elected High Court judges, who often seem to be out of touch with modern society and family life.

    Best regards
    Bruno D’Itri

  • Bruno D'Itri says:

    Sir Alan Beith wrote to Mr Cameron expressing his vehement objections to the proposed Shared Parenting legislation:

    http://www.guardian.co.uk/law/2012/jul/18/family-law-confusion-lib-dem

    Beith’s views reflect very closely indeed those of the Family Law Industry. According to them, the status quo is perfectly fine. It has been suggested that such resistance to change is fuelled by vested interests. It’s not too difficult to understand this hypothesis: the introduction of Shared Parenting legislation in Australia led to a 30% reduction in family law litigation. Is the Law Society serving the interests of its members ahead of the interests of children and parents?

    Beith’s opposition to Shared Parenting legislation is, perhaps, best viewed in some historical and cultural context.

    In the 19th century, British family law was such that, if the father so wished, separated mothers were likely to lose all contact with their children. Development of the law occurred very slowly indeed.

    Some change came with the Child Custody Act of 1839 and the Matrimonial Causes Act of 1857, but it was not until 1925 that the welfare of the child became paramount. At every stage, there were numerous ‘Mr Beiths’ who resisted any development in family law.

    Even today, in certain Middle Eastern cultures, separated mothers are treated despicably and are often denied access to their children. Here, too, there are ‘Mr Beiths’ resisting change.

    Sadly, the injustices once experienced by British mothers are now being visited upon British fathers in 21st century Britain.

    A father can be fully involved in the day-to-day care of his children. And yet, following separation, he can find himself completely excluded from their lives, for months or even years. He is forced to spend thousands of pounds in legal fees trying to regain some contact.

    How can this possibly be permitted to occur in 21st Century Britain?

    Following separation, the family courts automatically seek to anoint one parent with the status of ‘Primary Carer’. This will usually be the parent who, prior to separation, undertook 51% or more of childcare duties. In most cases, this is the mother.

    The law then bestows upon that Primary Carer a grossly disproportionate degree of power and control over the children, vis-à-vis the ‘Non-Primary Carer’ (dad).

    Of course, in most cases, separated parents are able to focus upon the well-being of their children and come to a mutually agreed childcare arrangement.

    However, in many acrimonious cases, the Primary Carer ‘uses the children as weapons’ – to coin a phrase adopted by Sir Nicholas Wall, the President of the Family Division. The children are used as a means of punishing a former partner by restricting contact.

    Such abhorrent behaviour currently goes unpunished by the family courts, their rationale being that to punish the children’s Primary Carer is tantamount to punishing the children themselves. With no effective deterrent, such behaviour is set to continue. As we know, our Government is looking at ways of introducing such deterrence.

    Single Parent/Primary Carer or Shared Parenting?

    There now exists a plethora of contemporary scientific evidence which demonstrates, beyond all reasonable doubt, the significant emotional, developmental and educational benefits for children of their being permitted to remain in a close and meaningful relationship with both their parents, post separation/divorce.

    Indeed, fifteen such scientific reports were presented to Sir Nicholas Wall in the case of Re D (Children) [2010] EWCA Civ 50. Sir Nicholas reserved his judgment for three weeks in order to read this very extensive evidence. He concluded that family laws potentially relegated the harm done to children by irrevocably damaging their meaningful relationship with the Non-Primary Carer.

    Mr Cameron – to whose Government the scientific evidence was also presented – understands the need for family law to develop in line with contemporary scientific evidence and with the realities of 21st Century parenting. We need only to look at last Summer’s riots to see where fatherlessness can lead.

    In contrast, Mr Beith appears to be ‘behind the curve’.

    Those of us who have lost meaningful contact with our children, and who live day by day in the soul-destroying knowledge that, according to the science, our children’s development will be significantly damaged as a consequence, very much welcome our Government’s initiative.

    Regards
    Bruno D’Itri

  • Bruno D'Itri says:

    Retired President of the Family Division, Baroness Butler-Sloss has recently expressed her strong objections to Shared Parenting legislation:

    http://www.express.co.uk/posts/view/370559/No-50-50-sharing-of-children-in-new-divorce-law-says-top-judge

    There are three major flaws in the views of the Baroness.

    Firstly, she makes the erroneous and very misleading presumption that those calling for Shared Parenting legislation are demanding a rigid 50/50 split of parenting time.

    Most reasonable voices who have campaigned for Shared Parenting (such as Families Need Fathers and The Custody Minefield) have acknowledged for years that a rigid 50/50 split of parenting time would be impractical in many cases.

    Instead, they have called for the significant and meaningful involvement of both parents, in order that the child may benefit from being properly parented by both its parents. Theirs has always been a qualitative approach.

    Of course, in order for a child to have a significant and meaningful relationship with both its parents, it will need to spend some minimum quantum of time with both parents, but this need NOT be 50%.

    Many who are vehemently against Shared Parenting legislation are finding it extremely difficult to counter the widespread and powerful scientific evidence in favour of Shared Parenting. They have commissioned a couple of academics in an effort to discredit Shared Parenting, but the evidence in favour of Shared Parenting is overwhelming. The general consensus among social scientists is that Shared Parenting is beneficial to children. There are parallels with Oil Companies who commission selected academics to try to discredit the evidence for Global Warming.

    Instead, opponents of Shared Parenting are rather desperately (and mischievously) attempting to shift both the debate and their attack upon the notion of 50/50. The Baroness succeeded in getting the Express Newspaper to headline this 50/50 notion!

    Secondly, whilst the Baroness concedes that children benefit from Shared Parenting when their parents are behaving “sensibly”, she states that the children of parents who are not behaving “sensibly” cannot benefit from Shared Parenting, as this would be harmful.

    In the very common scenario in which the court-appointed Primary Carer (usually mum) is upset and aggrieved with any aspect of the separation or divorce, and refuses (or is emotionally incapable) to behave “sensibly” and refuses to facilitate contact , the Baroness suggests that the Secondary Carer (usually dad) should NOT be involved in the parenting of the child. The Baroness appears quite unable to perceive firstly, the injustice of her argument and, secondly, the long-term damage to the child in losing one of its parents. The Baroness gives paramountcy to the wishes and feelings of the Primary Carer mother.

    Thirdly, the Baroness appears completely out of touch with the current Zeitgeist concerning 21st century parenting. She is firmly wedded to the ideology of the 1960′s and 70′s which strongly held that children needed the nurturing of their mothers and the financial support of their fathers. In no other of the Baroness’s judgments is this out-of-date ideology so stark as in the judgment of Payne v Payne (2001).

    Regards
    Bruno D’Itri

  • Yuri says:

    Commentators opposed to shared residence and overnights for infants and toddlers have been relying on misleading interpretations of very flawed research to argue that young children need to spend most of their time, and every night, in the care of one “primary” parent.

    In order to clarify where social science stands on these issues, a February 2014 paper published in the prestigious peer-review journal Psychology, Public Policy, and Law with the endorsement of 110 of the world’s top authorities from 15 countries in attachment, early child development, and divorce recommends that in normal circumstances, overnights and shared care should be the norm for children of all ages.

    The study is a major intellectual event and its importance cannot be overstated. The calibre of the distinguished international authorities is exceptional and the roll call of names and affiliations includes Charlie Lewis, Ph.D., Head of Department and Professor of Family and Developmental Psychology, Lancaster University.

    Reference

    Warshak R. A (2014) Social Science and Parenting Plans for Young Children: A Consensus Report. Psychology, Public Policy, and Law, Vol. 20, No. 1, pp. 46–67

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