What is shared parenting?
Shared parenting is where both parents have a significant involvement in a child’s life including playing a significant part in the physical day to day care of the child. However, it is often and unfortunately interpreted as strictly equal division of the child’s time between each parent. These two versions of ‘shared parenting’ both play a part in the current debate about the government’s proposal to introduce a ‘presumption’ that shared parenting will benefit children.
What do children want?
There is considerable evidence that children can benefit from and enjoy shared parenting arrangements so long as:
- Parents are co-operating
- Arrangements are flexible. There has been no research to suggest that equal division of time between households is beneficial and in fact, research suggests inflexibility around this area can cause particular problems for children.
- Financial and other resources are not limited
- Parental conflict including court applications are avoided
However, some children can find shared parenting disruptive, difficult and stressful when switching between two households.
What does research tell us about the needs of the child?
In November 2012 an interesting study into the perspectives of young adults who experienced parental separation in their your was published by the Sussex Law School of the University of Sussex, the authors of which were critical of the government’s shared parenting proposal. They found that children were interested in whether time spent with parents was enjoyable and not how that time was described (contact/residence/shared residence) and nor were they interested in whether their time was divided equally between parents.
The report made it clear that the young people interviewed viewed contact as very important for reassuring them that he or she is still loved by the non-resident parent and also that unless contact is not in the child’s interest it should be established as soon as possible and maintained.
The authors urge parents not to worry about issues such as frequency of contact and overnight stays as they believe the research shows that arrangements tailored to the age, needs and circumstances of the individual child, the quality of the relationship with the non-resident parent and the child’s own views on what would suit them best are more important from the child’s perspective.
What are the ingredients for successful contact?
The report showed an array of ingredients for making contact with the non-resident parent successful:
- Parents involving children in decision-making. A large number of parents of the young adults interviewed were unaware of the new found maturity their children had gained through experiencing the separation and assumed the children would fall in with whatever contact arrangements were needed. Consulting children routinely through any decision-making process around contact creates a more positive experience of contact. It is therefore particularly important for mediators to engage children in the mediation process when deciding on contact arrangements.
- Little or no post-separation conflict between parents.
- No domestic violence or serious concerns about the care the non-resident parent could provide.
- The resident parent encouraging the relationship between the child and the non-resident parent.
- The non-resident parent making time for the child. Particularly important was the perception that the non-resident parent is making an effort to make contact enjoyable and child-focused as a way of demonstrating commitment.
- The child feeling equally at home in both households.
- Either the non-resident parent not re-partnering or the child getting on well with their new parent.
In addition, the report conveyed the need to prepare children for a separation, explaining the reasons for it and maintaining support for the child through the process. Many of the young people interviewed felt a sense of abandonment and isolation when parents became less emotionally available in the aftermath of the separation. They suggest that parents need to seek help for themselves to enable them to continue supporting their children. Again this is support that a mediator can offer as well as helping to identify other suitable, external support.
Finally, one of the strongest messages of the report was the authors’ conviction that parents should feel confident that even with one parent being the primary carer and the other maintaining regular contact, the child has no sense of ‘second best’ from their perspective.
What are the government’s shared care proposals?
The government’s latest shared parenting proposal is for a new section 1(2A) for the Children Act 1989, which says the following:
‘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.’
There is some confusion as to whether or not this is a presumption in the legal sense, or what Mr Justice Ryder described to the Justice Committee as an ‘imperative’, but the government does seem to believe that whatever it is, it will be subject the ‘best interests of the child’ presumption, which the government believes will take priority in all situations.
A new section 1(6) is also planned, which will provide that:
‘(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.’
What are the criticisms of these proposals?
Critics have expressed serious concern over the introduction of a shared parenting clause and in particular the legislation on equal parenting time.
The Justice Committee have heard evidence from supporters and opponents of the new legislation and also expressed anxiety over the shared parenting clause. They identified four key questions to address in the debate:
- Does the draft clause detract from the principle that decisions must be made in the best interests of the child?
- Is the draft clause likely to be misunderstood as a right for parents to spend particular amounts of time with their children?
- What effect will the draft clause have on the number of cases requiring court orders?
- Will the draft clause change perceptions of bias within the family courts?
Their main concern is that the draft clause may detract from the principle that the best interests of the child are paramount and that shared parenting should not be presumed to be a good thing in all cases. The Committee also points to the fact that the shared parenting clause will only be of direct relevance to the type of cases that require a court order, which are precisely the types of case with the highest levels of conflict, in which the benefits of shared parenting may be most questionable. The Committee therefore recommends that the government should include a statement making it clear that the child’s welfare presumption takes precedence over the shared parenting presumption.
The Committee is also concerned that many parents will misunderstand the clause as giving rights to equal time, although it does not in fact do so. This may be an issue of particular concern to mediators, who could well have difficulties explaining the true position to parents who have been encouraged to believe that equal division of time has become the norm.
The Committee does not believe that the draft clause will necessarily help to reduce the number of cases that reach court, and notes that the evidence about other jurisdictions has no direct application to the English situation for a number of reasons. In fact, the Committee thinks it likely that in the short-term the new clause will actually result in an increase in the number of cases reaching court, as parents, lawyers and the courts work out how the draft clause operates in practice.
The Committee does not believe that the draft clause will, on its own, change perceptions of bias within the family court system, and suggests that the real problem lies with the failure to enforce court orders that exist, rather than with the content of those orders.
What happens next?
The government’s response to such criticisms is that it does not intend or expect that the proposed new wording will necessarily change the content of court orders, but that the shared parenting clause will make a positive difference by encouraging parents to reach agreement on shared parenting, and will also reduce the perception of bias towards mothers. Both of those aims are worthwhile.
However, the fear is that in fact the new clause will change parental expectations, creating three separate potential problems.
- Particularly worrying from the perspective of mediators, is the possibility that changed parental expectations will make it more difficult for parents to agree workable, child-focused children arrangements.
- The possibility that the draft clause does not in fact change the approach of the courts, in which case ‘non-resident parents’ who believe that the draft clause gives them certain rights (fighting long, hard, and expensively) but who are disappointed, are likely to feel even greater frustration and disillusionment with the system than they do at present.
- Faced with increased pressure from parents, the draft clause does impact on the courts, and in doing so dilutes the fundamental principle that the welfare of the child is of overriding importance by giving weight and significance to issues that are of no particular interest to the child.
The voices of young adults in the Sussex report made it clear that parents should make an effort to agree, make sure their child feels loved and supported and none of them insisted on equal division of time or shared parenting. This is good advice from people who have experienced separation from the perspective of a child. It is uncertain whether the shared parenting clause is going to be anywhere near as helpful.