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Shared parenting presumption: will it work for children?

November 13, 2012 Speech Box

On Tuesday 6 November the Government announced its response to the consultation process suggesting amendments to the Children Act 1989 on the question of the parental involvement in the lives of children upon family breakdown.

It is important to note that no legislation has actually been introduced yet. This is a response paper in which it was said that a draft Bill will follow.

The proposed amendment is to introduce the concept of a “shared parenting presumption”.  The intention of the Government appears to be to send a clear “signal” about the importance of shared parenting and to require the court to work on the presumption that a child’s welfare is likely to be furthered through safe involvement with both parents.  This is intended to be applicable unless there is evidence to show that it would not be safe for the child or in the child’s best interest.

The proposed legislation does not mean that there will be any right to equal time and the courts are still to make their decisions based on what is in the child’s best interest.  The Law Society has said “The welfare of the 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”.

I believe that the existing legislation is adequate – it provides that the courts need to make their decisions based on what is in the child’s best interests by having regard to the welfare checklist. Sometimes shared care works extremely well for children, but for others it does not.  The proposed changes are likely to give rise to misperception that there is a presumption of equal time and this is probably going to result in a lot of unhappy litigants.  It already seems that some (probably many), members of the public, having read reports in the press, are firmly of the view that the situation is now going to change such that there will be equal shared care.

Whilst it is undeniably important that the Government should promote involvement by both parents in the lives of their children on the separation of their parents, to create a presumption of automatic equal shared care cannot be the correct way forward, and the Government knows this. The challenge for the Government is how to send out the message that it is keen to promote the involvement of both parents, but there should be no presumption of equal shared care.

It is an interesting time of the year for the Government to announce its response as, traditionally family solicitors experience an influx of cases involving children’s issues in the run up to the festive season holidays.

I have experienced many clients seeking to bring applications to the court at a very late stage because they are being refused contact with their children over the Christmas holiday or where they have been refused permission by the other parent to take the children on a trip abroad.  I expect to receive an increased number of such enquiries over the next few weeks, directly as a result of the publication of the response.

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