Why the Government is wrong about shared parenting legislation

I can really sum it up in two words: ’access’ and ’custody’.

Zoe Saunders
Zoe Saunders

The Government Response to the Family Justice Review’s final report ignores the concerns raised in the Family Justice Review and proposes at paragraph 60 “a legislative statement of 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”. One might have thought that the fact that it already has to be couched in such cautious terms would act as a warning signal of the difficulties that lie ahead, but apparently not.

What’s the problem? The Family Justice Review interim report consulted specifically on the question of whether there was a need for legislation to more formally recognise the importance of children having a meaningful relationship with both parents post separation. This wording echoes the Australian family law that in 2006 enacted the Family Law Amendment (Shared Parental Responsibility) Act, which contained a provision requiring judicial officers to have regard to ’the benefit to the child of having a meaningful relationship’ with both parents. The interim report expressed support for such a proposition and 49 per cent of 401 respondents to the question were in favour, albeit some expressed concern about any dilution of the notion that the child’s welfare is paramount.

Nevertheless, having considered all the responses to the consultation, including a detailed response from Australian academic Helen Rhoades (which is attached to the final report), the Family Justice Review (FJR) does not support any change to the legislation. It is really important to note that this does not mean that there is not support for the principle of shared parenting, there is a clear recognition that the courts start from the principle that contact with both parents will be in the interests of the child, unless there are very good reasons to the contrary. The FJR recognises that the question is how to promote this principle without inadvertently encouraging dispute. The evidence considered by the FJR suggested that people had very different interpretations of ’shared parenting’ as a concept and that in practice there tended to be an emphasis on quantity of time rather than quality of relationship – an issue with which all family practitioners will be familiar.

The FJR concludes that any legislation might risk creating an impression of a parental ’right’ to any particular amount of time with a child would undermine the central principle of the Children Act 1989 that the welfare of the child is paramount. They also recognise that any further statement in legislation risks creating confusion, misinterpretation and false expectations.

The Government response to all this careful consideration is effectively to disregard these concerns on the basis that they will “consider very carefully how legislation can be framed to avoid the pitfalls of the Australian experience”.

This all sounds fantastic in principle, as they go on to state that any changes will be complementary to, not in conflict with, the principle in the Children Act 1989 that the welfare of the child is paramount. But the fact is that it has been over 20 years since the Children Act 1989 did away with the concepts of ’custody’ and ’access’ and yet any newspaper article relating to private law children disputes is inevitably couched in those terms. I often have clients who were born long after 1989 talking to me about having custody of or access to their children. If the general public cannot take on board the changes in simple terms from ’custody’ to ’residence’ and from ’access’ to ’contact’ in well over 20 years isn’t it hopelessly over-optimistic to suggest that carefully worded statements will filter into the national understanding without a huge (and expensive) programme of public legal education?

By far the more likely outcome of any legislative change is that it will be entirely misinterpreted, whether deliberately or otherwise, to fit the viewpoint of whoever seeks to rely on it to support their cause.

The Government response suggests that the aim of any presumption of shared parenting will be to enhance the prospect of an agreement between parents that is in the best interests of their child, without recourse to “often damaging and protracted adversarial action in the courts, which is clearly not in the child’s interests”. Aside from the fact that this ignores the iron rule that new legislation breeds 10 years of litigation, this seems to suggest that a presumption of shared parenting will assist in the “damaging and protracted” cases.

At this point I entirely expect anyone who has been involved in an intractable contact case will be laughing hollowly to themselves. If a neat little homily about the importance of shared care could resolve cases like that, then they wouldn’t be intractable – the clue is in the name. The hallmark of intractable contact disputes is that they inevitably involve allegations of serious harm to the welfare of the children involved. It doesn’t matter whether the allegation is physical, sexual or emotional abuse, or parental alienation – the fact is that those are the cases that will always be argued and any legislative changes have as much effect as adding a drop to the ocean.

My greatest fear about legislative change is that the Government will be handing a weapon to those who inflict domestic abuse on their partners. Any statement of shared parenting risks being added to the familiar litany of “no one will ever believe you, you’ll never get away from me, I’ll tell everyone you’re an awful mother/father, that you’re mental, on drugs, an alcoholic” in terms such as “you’ll never stop me seeing the kids, they’ll spend half their time with me”. Just as untrue as the previous statements and sadly just as powerful to the victim when repeated over and over. How could the Government’s careful wording manage to legislate for this? It can’t and they should reconsider.

Zoe Saunders is a family barrister at St John’s Chambers