Why the Government is 'right' about shared parenting legislation
Sep 29, 2012
Zoe Saunders (a family barrister at St John's Chambers) recently penned an article on The Lawyer website headed 'Why the Government is wrong about shared parenting legislation'. Zoe's article explained why in her view the Government was wrong to say they were going to develop legislation emphasising the importance of both parents. Zoe Saunders arguments against shared parenting laws simply do not add up, here’s why.
The recommendations of the Family Justice Review final report were against legislative change that stressed both parents' importance and a presumption of shared parenting after separation. The FJR 'final' report had back-pedalled from their interim report which had encouragingly recommended a change in legislation to emphasise "the importance to the child of a meaningful relationship with both parents after their separation where this is safe". The Government quite rightly quickly dismissed this change of stance by the FJR Panel stating they were going to develop legislation emphasising the importance of both parents, regardless of David Norgrove and the rest of the FJR Panel's U-turn final recommendations.
The Government's response to the FJR final report went on to say: "The aim of any presumption of shared parenting will be to enhance the prospect of an agreement between parents which is in the best interests of their child, without recourse to often damaging and protracted adversarial action in the courts, which clearly is not in the child’s interests."
The vast majority of people outside of the family law system would support there being a child focussed statement in law that accentuated the significance of a child's relationship with both parents after a separation; they would also overwhelmingly support a presumption of shared parenting. So why are the coalition, the public and many others 'wrong' according to Zoe? Looking at the arguments against shared parenting legislation in her article reveals they simply do not stack up.
- The primary reason why having shared parenting legislation is wrong in Zoe's view, is because the media and general public after 20 years still use the words 'custody' and 'access' rather than 'residence' and 'contact' many times. If the newspapers and public are still using terms such as custody and access after all these years then moving to terms such as shared parenting is doomed to failure or in Zoe's words "hopelessly over-optimistic". "Confusion, misinterpretation and false expectations" (FJR conclusion) are a risk. -
So what! Whether you call it custody or residence in practice they are pretty much interchangeable when it comes to their everyday use for many parents in this jurisdiction and beyond. The words still elevate one parent above the other, are still frequently a source of contention between parents, even the FJR recognised this and recommended the removal of such loaded language.
A change in the family law structure where a presumption of shared parenting is in place signals to parents that they are both equally important to their children. It informs society that the Government and the family law system values both parents and will treat them fairly in Court. There may be some confusion initially but that is not a good enough excuse to hold back on changing matters positively for children. Other countries have managed such a legislative change relatively smoothly resulting in better satisfaction levels for users of their family law systems.
There is a huge difference in moving towards a family law system that values both parents and treats them equally as important to children versus a system that promotes gender apartheid in that one parent falls under the residence/primary carer label; the other NRP/contact. Quibbling about terms such as residence, custody, access and contact is a distraction at best or merely fiddling while Rome burns at worst.
- Zoe mentions the Australian academic Helen Rhoades who's less than positive response to the Australian 2006 reforms was considered by the FJR Panel. -
Helen Rhoades acknowledged the comprehensive three year evaluation conducted by the Australian Institute of Family Studies (AIFS) provided an overall finding of "substantial success" regarding Australia's 2006 Shared Parental Responsibility Act reforms.
As you would expect there is concern in parts about the reforms by some, which is where Helen Rhoades concentrated her response to the FJR. The FJR weighted these concerns above the overall findings of substantial success regarding the reforms. Notwithstanding these concerns could be relatively easily addressed in the England & Wales jurisdiction if deemed necessary within future shared parenting legislation.
- Zoe says that there is already a clear principle of contact with both parents and that there is support for shared parenting but she and the FJR are worried about inadvertently encouraging dispute. -
There may be a principle in the Children Act 1989 regarding both parents having contact but the reality is in practice it simply does not work for many children. Lord Justice's Munby and Ward have spoken out about the need for sweeping changes to the system and that the courts were powerless to help decent fathers to see their children if vengeful mothers stood in the way. Some lawyers say the present adversarial system polarises parents, putting children in the middle of the antagonism and fathers frequently back off and give up because it is too painful to use the courts.
There is support in case law for shared parenting/care but at the level of the county court and family proceedings court this is limited. Without legislation setting out an expectation of shared parenting where practical to the courts, parents and society we will continue with the present destructive adversarial system that pits parent against parent rather than encouraging them to cooperate. Judges up and down the land try to get parents to cooperate but it simply is not possible many times when parents do not believe they are on a level playing field regarding their children.
Shared parenting legislation in Australia reduced disputes; reduced applications and reduced litigation as the AIFS comprehensive evaluation reported.
- Zoe talks about people having different interpretations of what 'shared parenting' is, and that in practice parents believed quantity of time rather than quality of the relationship was important. She repeats the FJR conclusions that any legislation might give the impression of a parental right to certain time with children undermining the welfare of children. -
So called non-resident parents (generally fathers) are well used to being told by lawyers and the Courts that it is the quality rather than the quantity of time with their children that matters. Parents know instinctively this is nonsense and although limited parenting time will have to suffice in plenty of cases because of distance, work etc. It is for many no substitute for being a hands-on parent who can interact with their children in order to assist their child's development.
Parents may have different interpretations about what shared parenting is but with the assistance of mediators, family professionals and the courts within a shared parenting framework agreements that satisfy both parents and the children’s needs are relatively easily achieved.
Research makes it clear that inter-parental conflict decreases within shared parenting arrangements as neither parent is threatened by the loss of the children and parental identity. Shared parenting is in keeping with current child care patterns, as the majority of mothers and fathers are now sharing responsibility for child care when together. It's the child's right to have a meaningful and as full a relationship with both parents as possible in the circumstances after their parents separation, which shared parenting legislation supports.
- Zoe scoffs at the Government response that suggests the aim of any presumption of shared parenting will be to enhance the prospect of an agreement between parents and without recourse to often damaging and protracted adversarial action in the courts. She goes on to talk about intractable contact disputes which involve allegations of serious harm to the welfare of children, that these cases will not be affected by legislative changes. -
Evaluation of the Australian reforms in 2006 has shown that agreements between parents will happen more often when shared parenting laws are in place. Significant falls in applications to court and a shift away from an automatic recourse to legal solutions occurs. Parent's cooperation increases over time in shared parenting arrangements but decreases in sole residence arrangements. Evidence shows that the current framework of sole residence/primary carer in contested cases is associated with high rates of inter- parental conflict. There will always be very difficult cases but they can be more effectively dealt with if applications and litigation in the less difficult cases fall as a result of shared parenting laws.
- The "greatest fear" of Zoe and I think probably what goes to the heart of her opposition to reform is that she worries that the "Government will be handing a weapon to those who inflict domestic abuse". She is concerned that a statement regarding shared parenting will risk domestic abuse perpetrators using it as a verbal weapon against their victims. -
I'm sure there will be a relatively few cases where domestic abuse perpetrators will lie and use this as a verbal weapon. Certainly the counter verbal assault of "I'll stop you seeing the kids" is used presently by domestic violence perpetrators and regularly by many parents. However, this has no bearing whatsoever on shared parenting legislation as domestic abuse will continue to be dealt with as usual. Abusers of either sex will always taunt, threaten and attempt to control their victims by the use of language. Research does show that domestic violence drops when shared parenting legislation is introduced.
I don't think Zoe's arguments against a presumption of shared parenting in law are at all convincing and I hope the Government will stay the course.