On 2nd July 2013 the Children and Families Bill had its second reading in the House of Lords. It contains two amendments to primary legislation within the field of private children law.
One of the amends is to abolish contact and residence orders and to create instead a new “child arrangements order” which is defined as “an order regulating arrangements relating to with whom a child should live, spend time, or have other types of contact, or when they should do so”. Parental Responsibility, Specific Issue Orders and Prohibited Steps Order remain unchanged.
The Bill also contains a provision which was rejected by the Family Justice Review but received public support. The Bill will include an amendment to encourage “co-operative parenting following family separation”.
Clause 11 of the Bill requires the court “to presume, unless the contrary is shown, that involvement of [the parent] in the life of the child concerned will further the child’s welfare”.
In summary, the effect of this amendment is to require the court, when making decisions on contested section 8 orders; contested variation or discharge of such orders; or the award or removal of parental responsibility, 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 do so.
The rationale behind the 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.
However, some commentators would argue that the court already has regard to this when carrying out the delicate balancing exercise required of it in the exercise of its powers. It is widely understood by the courts and professional agencies that children benefit from having a relationship with both parents and many consider the inclusion of this explicit presumption unnecessary. Indeed, in 2010 just 300 section 8 contact orders were refused out of a total of 95,460 applications.
What exactly is meant by “shared parenting”?
A frequently asked question is whether “shared parenting” means an equal division of time or simply a presumption that both parents be involved in the child’s upbringing.
Unfortunately the woolly concept of shared parenting has not been explored in any great detail and seems to have created the perception, particularly in the media, that it means a right to substantially shared or equal time, for both parents. In practice, the logistics and timetable of a share parenting arrangement vary from family and family. It is still fairly rare to find a strict 50/50 arrangement in place but they do exist and can work very well in some circumstances.
Families Need Fathers has welcomed the introduction of a “shared parenting clause” into the Children Act 1989 on the basis that it addresses a perceived imbalance in the treatment of parent’s post-separation.
The Law Society described the proposal as “seriously flawed”. Some commentators have argued that it detracts from the primary consideration – the child.
Mr David Norgrove, author of the independent Family Justice Review, expressed concern that the current law should not be changed, citing the difficulties encountered under Australia’s shared parenting laws. Under Australia’s Family Law Amendment (Shared Parental Responsibility) Act 2006, the court begins with the principle of equal division of time. It was thought that this would reduce litigation between parents but unfortunately it has in fact led to an increase.
It should go without saying that “true” shared parenting (i.e. equal division of time) works best when separated parents are co-operative and flexible. Mediation can assist separated couples in fleshing out an arrangement which will work for their children. It must always be remembered that arrangements have to be kept under review – what works for a five year old, will not necessarily work for an eleven year old. It is the job of the child(ren)’s parents to agree what the arrangements will be and what is in the best interests of their children.
In the recent case of Re W (Children: Direct Contact)  1FLR 494 the Court of Appeal stressed:
“Parents, both those who have primary care and those who seek to spend time with their child, have a responsibility to do their best to meet their child’s needs in relation to the provision of contact, just as they do in every other regard. It is not, at face value, acceptable for a parent to shirk that responsibility and simply to say “no” to reasonable strategies designed to improve the situation in this regard”.
Most separating couples come to the conclusion that it is in the best interests of their child(ren) to have a meaningful relationship with both parents but sometimes the logistics and practicalities can be difficult to work out. In Re W the court was at pains to stress that the primary responsibility for delivering a good outcome for a child falls on each of his or her parents, rather than upon the courts or some other agency: “…the courts are entitled to look to each parent to use their best endeavours to deliver what their child needs, hard or burdensome or downright tough though that may be.”