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Shared parenting presumptions are set to be introduced by the Government in the Children Act 1989

Posted on January 27, 2013

Proposed Clause
The Department for Education announced on 6th November 2012 that it proposes to introduce amendments to The Children Act 1989 to allow for a presumption of shared parenting. There will be a new section 1 (2A) inserted into the Act as follows:
“(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.”
The restrictions upon the presumption will be elaborated in new sub-sections (6) and (7) as follows:
“(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).”
In simplified terms this would mean that the courts’ starting position would be that both parents should be involved in the raising of the child and that there would need to be a clear reason to have one of them not involved, e.g. the risk of harm to the child.
The legal changes are likely to come into effect in 2013.
Courts will continue to apply the welfare principle and the general ‘checklist’ of factors will not change.
Explanatory Note
The draft clause also has an explanatory note:
‘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. The effect of this amendment is to require the court, in making decisions on contested section 8 orders, the 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 such involvement would not in fact further the child’s welfare’’.
Examples of where I have encountered risk of harm to the child on contact cases
I have encountered this as a solicitor and even in this situation some form of contact was ordered by the court. A mother was threatening to physically attack the father and the child so it was ordered that contact should be indirect through letters three to four times a year where the letter was checked for suitability before being passed to the child.
I do volunteer work at a contact centre and have recently interviewed a mother. It was ordered at court that the father has supervised contact at a contact centre as there was a concern that the father may poison the child’s food. In this case contact was supervised with no food being allowed to be given to the son from the father during contact.
Burden of Proof
With the new changes it will no longer be necessary for one of the parents to prove why contact and residence is in the child’s best interests and the burden of proof will now be on the opposing parent to the application to detail reasons to rebut the presumption.
From my experience, shortly after separation emotions can run very high which may account for a parent to look to rebut the burden of proof, but, over time, both parents reach a business-like relationship for contact and residence arrangements so hopefully this new burden of proof will not create further litigation between the parties. If the separating parents work together this really can play a big part in the child’s future positive development. I give each of my mediation clients a copy of the leaflet ‘Kids In The Middle’ which helps to explain this approach.
Other options or services to resolve contact and residence disputes
With legal aid in family law matters likely to be withdrawn next year for contact and residence matters, it is important that where both parents are minded to go to court and who may now be forced to act in person, do not feel that before they get to court it will be a case of ‘’winners and losers’’.
If parents are properly advised before they go to court that there is now a presumption of shared parenting, this should encourage more couples to attempt family mediation to reach a balanced arrangement to decide where the children will live and how contact will work. I find these agreements are less likely to fall apart as the parents know their own commitments and the child’s commitments and can then shape contact accordingly to suit these factors.
Also, if parents attend the Separated Parents Information Programme at the start of their separation rather than being ordered to attend the course at the end of a final hearing this may help them to agree contact and residence arrangements at an early stage rather than having a long and contested court hearing.
Contact time
The proposed changes do not state how much time the child should spend with each parent. This will be for the court to decide.
From the couples I work with in mediation sessions it is very rare to get an actual split of 50/50 contact time.
For cases where the baby is only a few months old the non-resident parent tends to have frequent and regular contact for a few hours as the baby needs to sleep and be fed but there are some examples where both parents live in close proximity and overnight contacts do happen for 3-4 nights a week where both parents are accustomed to caring for the child’s daily and overnight needs.
When we are arranging contact for teenagers this is often done with children being part of the process (Direct Consultation with Children) as the teenagers are keen for parents to be aware that they sometimes want to be with their friends at the weekend or do sports activities to mix with their peers.
Where there is not a 50/50 split of contact time in the week, or where one parent lives abroad, then the non-resident parent tends to have more generous holiday contact time so that there is a nice balance in contact time.
Skype is no substitute for direct contact, but this is increasingly forming part of contact arrangements where one parent lives abroad.
Other Jurisdictions who have introduced shared parenting
Shared Parenting schemes have been introduced in Australia and Denmark but there are question marks as to how successful they have been. The Scottish legal system has a more modern approach which sets out a declaration of parental rights. Hopefully we can learn from what has worked and not worked in other jurisdictions when the new changes come in to force.
Other views to the proposed changes
There are mixed views to the proposed changes being introduced.
The Law Society: ‘’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. While the government’s intention to promote co-operative parenting is welcomed, legislation to promote shared parenting is not needed. Current legislation adequately provided the right framework for securing a child’s welfare.’’
Ken Sanderson, Chief Executive Office of Families Need Fathers has welcomed the announcement: ‘’This is a very positive move, and will help to ensure that as many children as possible can continue to benefit from a meaningful relationship with both parents following separation and divorce’’.
Final thoughts
The ‘shared parenting’ provision appears to be in line with what YouGov surveyed in June 2012. 84% responded that both parents deserve equal custody rights and 85% said fathers are instrumental to a child’s life.
Shared care will now be a regular reminder to parents that the children were created by both parents and should not be brainwashed against a parent or be used to win points against their former partner.
It is hard to predict if this change will result in fewer children disagreements proceeding to court but it is hoped that parents will recognise and take on board the new presumptions and if disagreements do arise they will be settled by incurring fewer costs and using other options such as mediation which can generally offer a quicker timeframe to the court timetable. Listing a matter at court from my experience can be around 6 weeks. Most mediation clients I see who reach agreement do this within a 6 week period.

Austin Chessell is a Family Mediator at FAMIA and a Family Solicitor at Shortlands Solicitors.

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10 Responses to “Shared parenting presumptions are set to be introduced by the Government in the Children Act 1989”

  1. Bruno D'Itri on February 10th, 2013 4:40 pm

    When parents separate or divorce, the court automatically anoint one parent (usually the mother) with the legal status of ‘primary carer / resident parent’. It then bestows upon that parent a grossly disproportionate degree of power and control over the children vis-à-vis the ‘secondary carer / non-resident parent’ (dad).

    In many acrimonious cases an embittered resident parent uses this power to exclude the second parent from the lives of the children. The courts are reluctant to punish this abhorrent behaviour, their rationale being that to punish the primary carer is tantamount to punishing the children. With no deterrence, this behaviour is set to continue. Our Government is looking to introduce some deterrence.

    Quite naturally, an unjustly excluded parent will employ the very costly (£200 plus per hour) services of solicitors and barristers in a desperate effort to regain contact with his children. Truly obscene sums of money begin to flow from broken families into the coffers of the law firms. The Family Justice Industry feeds upon the love an excluded parent has for his children.

    A presumption of Shared Parenting would permit a loving parent to be fully involved in the parenting of his children, post separation or divorce, without the need for costly and lengthy litigation.

    In Australia, for example, litigation reduced by circa 30% following the introduction of Shared Parenting legislation.

    Of course, in those relatively few cases where there is a serious and proven risk of harm, contact can and should be restricted.

    Plainly, a similar reduction of circa 30% in British family court litigation would prove extremely damaging to the Family Justice Industry. It is little wonder, then, that the Law Society is vehemently against a presumption of Shared Parenting. Family lawyers are not saints; we should not naively assume that their leaders would place genuine justice for parents and children ahead of their desire to maintain their income stream.

    The judiciary is no better. Sir Nicholas Wall – the former President of the Family Division – sought to blame parents for “using their children as weapons”, without accepting in the least that it is the System itself which facilitates, encourages and fails to deter such abhorrent behaviour.

    The Government’s initiative on Shared Parenting is to be welcomed.

    Bruno D’Itri

  2. Bruno D'Itri on February 10th, 2013 4:41 pm

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

    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 want 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).

    Bruno D’Itri

  3. Bruno D'Itri on February 10th, 2013 4:42 pm

    I am very pleased that our Government is set to amend the Children Act in order to protect the Right of a child to benefit from a meaningful relationship with both its parents, post separation/divorce.

    This was an original intention of the Children Act (1989), but has been relegated or misinterpreted by the judiciary (specifically by Lady Butler-Sloss).

    I have campaigned vigorously over recent years for the acceptance of the principle that a child’s paramount interests are served by the Court giving due regard to maintaining its meaningful relationship with both its parents.

    Sadly, to date, the judiciary has remained more focused upon the wishes and feelings of the so-called ‘primary carer’ (usually mum) and has relegated the importance of the involvement of the de-facto ‘secondary carer’ (usually dad).

    There have been well-publicised cases in which the judiciary has recognised this shortcoming in the law, but has been unable or unwilling to act.

    In the reserved judgment of Re D (Children) [2010] EWCA Civ 50, for example, the former President of the Family Division, Sir Nicholas Wall broadcast (and later reiterated in a Family Affairs interview) his carefully considered view that Relocation Law – in the form of Payne v Payne – ascribed too great a weight to the wishes of the primary carer and relegated the harm done to a child due to the loss of its meaningful relationship with the left-behind parent.

    Regardless of his concerns, however, he proceeded to apply the very legal principles in Payne v Payne which he had criticised! Wall was either unable or unwilling to challenge a legal precedent which failed to serve the best interests of the children.

    With the forthcoming amendment to the Children Act, the judiciary will now be FORCED to give due and proper weight to maintaining meaningful relationships between children and both their parents.

    It is very hard to see how the principles of Payne v Payne can now survive. Plainly, a child which has been removed thousands of miles from its home country cannot easily benefit from maintaining a meaningful relationship with the left-behind parent!

    I expect this beastly law to be consigned to the history books before too long. A law which effectively permits a mother to cut out – like a cancer – a father from the life of his child is utterly barbaric and has no place in 21st Century Britain.

    Bruno D’Itri

  4. Bruno D'Itri on February 11th, 2013 8:57 pm

    The Children Act of 1989 required our judiciary to serve the paramount interests of the child.

    No one can (or should) disagree with this fundamental principle.

    The problem is that our senior judiciary has opted to interpret this paramountcy principle by adopting out-of-date suppositions which hark back to the 1960′s and 70′s. It has done so because of its rigid adherence to the system of ‘legal precedent’.

    Above all, a child needs the love and nurturing of its mother and the financial support of its father. Women are the emotionally weaker sex: if their wishes are thwarted by the court, their ability to parent their child will be adversely affected. A child can be raised quite satisfactorily without the nurturing of its father. A father may be permitted to share in the parenting of his child, but only if the mother is in agreement. If she is not in agreement, the father should not be involved in the parenting because this would upset the mother, and the resulting animosity would be harmful to the child. If a mother is found to have lodged false or exaggerated accusations of physical or emotional violence against a father, she should not be punished because this would harm her child.

    If these are the suppositions written into decades of legal precedent and indelibly ingrained in the minds of the senior judiciary – such as Baroness Butler-Sloss, Lord Justice Thorpe and Sir Nicholas Wall – then it is quite obvious that these judges will opt to interpret the Paramountcy Principle of the CA1989 by adopting those suppositions.

    A perfect example is Payne v Payne (2001). Butler-Sloss and Thorpe decided that the paramount interests of a child would best be served by ensuring that the child’s mother would not be upset by refusing her application to remove the child to the opposite side of the world. The unfortunate consequence that the child would lose its meaningful relationship with its father was not as important a factor as ensuring the happiness of the mother. In Re D (Children) [2010] EWCA Civ 50, Nicholas Wall refused to permit any challenge to the ideology of Payne v Payne. Wall was presented with a plethora of scientific evidence in favour of shared parenting, demonstrating that children’s best interests are served by protecting their meaningful relationships with both their parents. Wall relegated the importance of that evidence.

    Our senior judiciary has utterly misjudged the best interests of the child by remaining stubbornly wedded to an out-of-date ideology of parenthood.

    The forthcoming amendment to the CA1989 – inserting a presumption of shared parenting – will hopefully rectify that serious judicial error.

    Bruno D’Itri

  5. Bruno D'Itri on February 23rd, 2013 8:23 pm

    The Law Society is vehemently opposed to a presumption of shared parenting and strongly rejects any modification to the Children Act.

    It claims there is no evidence of any discrimination against non-primary, non-resident parents. Its leaders somehow seem oblivious to the fact that, week after week, many good parents find themselves unfairly excluded from the lives of their children, sometimes for many months on end.

    Of course, the raison d’etre of the Law Society is to serve the best interests of its membership, the Legal Industry.

    The Law Society is perfectly aware of the extensive and compelling contemporary scientific evidence which demonstrates, beyond any reasonable doubt, the significant benefits for children of remaining in meaningful contact with both their natural parents post separation or divorce.

    However, the Law Society also realises that shared parenting legislation is likely to be highly damaging to the interests of its membership.

    Many non-primary, non-resident parents unjustly excluded from their children’s lives will, quite naturally, employ the very costly (£200 plus per hour) services of solicitors and barristers in a desperate effort to regain contact with their children.

    Truly obscene sums of money begin to flow from broken families into the coffers of the law firms. The Family Justice Industry could be said to ‘feed’ upon the love an excluded parent has for his children.

    A presumption of shared parenting would permit a good and loving parent to be fully and meaningfully involved in his children’s lives, post separation or divorce, without the need for costly and lengthy litigation.

    In Australia, for example, litigation reduced by circa 30% following the introduction of shared parenting legislation.

    Plainly, a similar reduction in British family court litigation would prove extremely damaging for the Family Justice Industry.

    The Law Society thus faces a real dilemma.

    Should it stand up for the genuine interests of children and their parents and support shared parenting legislation? Or, instead, should it champion the interests of its membership and oppose it?

    Rather predictably, the Law Society has opted for the latter and has been attempting to convince Government officials that shared parenting legislation would be detrimental to the interests of child welfare.

    Can we really blame the Law Society for looking after its own? Not really. The livelihood of thousands of family lawyers hangs in the balance. They face significant hardships, perhaps even unemployment.

    Nevertheless, our Government’s overriding duty must be to serve the best interests of children and of their parents.

    Plainly, if our Government succumbs to the powerful and persuasive lobbying of the Law Society, it may fail in that duty.

    Our Government would be well advised to evaluate the views of the Law Society in the light of its plain and considerable vested interest in the status quo.

    Bruno D’Itri

  6. Bruno D'Itri on February 28th, 2013 12:21 am

    The ‘Children and Families Bill’ was debated in the House of Commons on 25 February 2013. A transcript of this Parliamentary debate can be found here:

    Tim Loughton spoke passionately and with much insight about the very real problems many non-resident parents (usually fathers) face in trying to maintain meaningful contact with their children. He was particularly scathing of resident parents who use the ‘system’ to exclude non-resident parents, and of the ‘system’ itself which fails to deter or prevent such abhorrent behaviour.

    In contrast, Sir Alan Beith appeared completely ignorant of these realities. He maintained that no shared parenting amendment was necessary.

    Beith suggested that the Paramountcy Principle would be undermined by the proposed shared parenting amendment.

    Loughton made it very clear to Beith that the proposed amendment plainly specifies that the paramountcy principle remains ‘paramount’ and that contact would not be ordered by the court if there was a verifiable risk of harm to the child. This plain explanation did not seem to satisfy Beith.

    Loughton recounted the fact that, of 3 million family breakdowns in one particular year, 1 million fathers lost all contact with their children. Plainly, this cannot be good for the welfare of those hapless children.

    Loughton explained that the shared parenting amendment was designed to serve the Right of a child to be parented by both its parents.

    In contract, Beith intimated that the amendment served the Rights of Parents rather than those of their children.

    Beith suggested that the amendment would cause non-resident parents to expect 50% parenting time with their children.

    Loughton made clear that the amendment was qualitative rather than quantitative in its design, and that it was plainly non-prescriptive regarding parenting time.

    Beith stated that the popular press was touting the idea of 50/50 time, and that non-resident parents would therefore arrive at the same understanding.

    Loughton stated that the misrepresentation of the amendment by the polular press would not prevent the Government from going ahead in the interests of child welfare.

    As the new legislation is enacted, the press and the general public will need to be educated as to exactly what it entails and what parenting arrangements can be expected by separating parents.

    Overall, I’d say Loughton won the argument.

    Beith’s position remains very closely wedded to that of the Law Society.

    It is no too difficult to speculate as to why the Law Society favours the current status quo and why it is against shared parenting legislation. Plainly, there are considerable vested financial interests in the continuation of non-resident parents going to court to re-establish or enforce contact with their children.

    Precisely why Sir Alan Beith follows the Law Society’s stance so closely requires a little more fanciful speculation, perhaps concerning the methodology and efficacy of lobbying by special interest groups!

    Bruno D’Itri

  7. Bruno D'Itri on March 2nd, 2013 12:52 pm

    I’ve just been fiddling with the zoom function of the SatNav on my new Audi (yes ladies… a new Audi!).

    I zoomed right out and managed to get the whole of Western Europe on the screen. This wasn’t particularly helpful in assisting me with my 1 mile journey to the local shops!

    Incidently, as a man, I feel compelled to use the SatNav for each and every journey, even short, familiar routes I could probably drive blind-folded!

    Anyway, while I was fiddling, it made me think about the Children and Families Bill, and about the need to ‘zoom out’ for perspective.

    There has always been a direct link between societal norms and legislation.

    Most significant shifts in societal norms have led to changes in legislation, but this has usually involved a tough struggle!

    Anti-discrimination legislation for people of different race, gender and sexual orientation all eventually followed in the wake of changes in society.

    However, in each case, the resistance from what I shall call ‘the forces of conservatism’ was powerful. There were significant vested interests in the status quo, and those who stood to lose out were not going to accept change without a fight!

    In each case, honourable campaigners for justice and reform were discredited, undermined, attacked and even murdered.

    Martin Luther King Jr’s letter from Birmingham Gaol touches my heart each and every time I read it. It is the quintessential call of any person facing discrimination and demanding justice.

    Now, I perfectly accept that Matt O’Connor of ‘Fathers 4 Justice’ is NO Martin Luther King Jr!

    However, his argument for justice for children is, in my view, Righteous. It is Good. It is Honourable.

    A child surely deserves to enjoy the love, care and guidance of two good and responsible natural parents.

    The ideology of parenthood of the 1960’s and 70’s saw the mother as the ‘natural’ carer and the father as the ‘natural’ financial provider. Family legislation reflected this ideology.

    Of course, societal norms have now changed. In 21st century Britain, BOTH genders are now viewed as natural carers and financial providers.

    Has legislation fully caught up with this societal change? No.

    Do fathers face systematic gender discrimination? Yes.

    Is this discrimination indirectly perpetrated via the legal constructs of ‘primary carer’ and ‘non-primary carer’? Yes.

    I am a good, responsible and conscientious parent. I know I am, because a judge found me to be so!

    And yet I was forced to endure two periods of separation from my beautiful children: firstly for 8 months and subsequently for 1.5 years.

    I now see my children once a month in a motel room in Eastern Europe.

    Any genuine ‘meaningful involvement’ in my children’s lives has been significantly undermined.

    I am not alone in my experience.

    There are thousands of perfectly good and caring British parents (mainly fathers) who face similar discrimination.

    To the “discrimination deniers”, to those who seek to preserve their vested interests in the status quo, and to those who are simply unaware of the discrimination, I say, think of that child, think of what he is missing, think of what you might say to him if he asked you why he couldn’t see his dad.

    Let us open our hearts and our minds.

    Let family legislation reflect modern parenthood.

    Let us support Tim Loughton MP and his shared parenting legislation in the Children and Families Bill.

    Bruno D’Itri

  8. Bruno D'Itri on March 16th, 2013 9:50 pm
  9. Bruno D'Itri on March 24th, 2013 2:00 pm

    The debate on Shared Parenting continues…

    Bruno D’Itri

  10. Massey Ellesmere on April 1st, 2013 7:50 am

    Thank you for your comments. It is much appreciated.

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