Shared parenting, which can be explained as a set of arrangements organised between parents, either with or without the help of third parties like courts or mediators, designed to create set times for separated or divorced parents to spend time with their children, has long been a hot topic in the family justice system. Definitions do vary and the term shared parenting is often interpreted to mean equal time with a child, between parents.
And it has flared up again in the wake of the Children (Access to Parents Bill) which initially failed to be ratified, or made into law, to the new proposals to enshrine a presumption of shared parenting in the Children Act 1989. But for every debate, there are always two sides and this research from the Nuffield Foundation, entitled “Caring for children after parental separation: would legislation for shared parenting time help children?” is the counter-culture to a system already riddled with conflicts of interest. The most recent report from the Foundation, which we failed to add a link for, and are adding now, can be found here and is entitled “Taking a longer view of contact: perspectives of young adults who experienced parental separation”.
Already coming under fire by fathers’ groups and other quarters, it seems as if those with often genuine axes to grind and others simply jumping on to the band wagon have fallen prey to not looking before they leap. And this latest research is embedded and connected with the report we mention first, which was published in 2011.
Shared parenting is a sensitive and highly controversial topic. It is most often associated with displaced dads who feel they have been denied contact with their children specifically by mothers, and sometimes those feelings of calculated estrangement are real and legitimate and are a result of several factors, including the family justice system letting these dads down. But the Nuffield Report does not legitimise this behaviour and explicitly starts by saying that having both parents in a child’s life is the optimal position. It also goes on to define shared parenting as an arrangement where two parents divide a child’s time equally between themselves.
Already, we start to see a shift away from what is best for that child and their ever-changing needs (these arrangements, unlike the quasi-legal ones made in UK family courts currently, have a far less flexible feel, which in itself is dangerous, as it does not take into account a growing child’s changing needs, emotional, physical and even just day-to-day practical). The focus is squarely on the perceived rights of each parent, something we at Researching Reform disagree with. To our mind, parents do not have rights, they have responsibilities, which we have written about often and did so in relation to the Norgrove Report, and the report goes on to mention the Welfare Principle, contained within the Children Act 1989, which says that the welfare of a child should be the paramount, or most important consideration, in any contact arrangement. Therefore, as the Nuffield Research suggests, another clause set against the principle, to enforce parental rights, will not only sit awkwardly against the Paramountcy Principle, but will also directly infringe it. This clash of clauses is what the Nuffield Foundation eludes to and it is what the entire report is trying to address.
In a broader sense, the Paramountcy Principle itself is the most sophisticated of all instruments in the Children Act itself for ensuring that loving and capable parents can spend time with their children post separation. It is understandable that wronged parents wish to see a presumption which on the surface appears to address an imbalance, but the reality is that the legislation is already there to ensure that children can be with their parents under the right circumstances – adding further forms of insurance inside the act or any other would surely not improve on what is already the most incisive insurance policy there is – offering a central focus on the most important aspect of any contact case: the child.
A poignant point that seems to have eluded campaigners is that the research is not gender specific. That is to say, the research inside the report itself shows clearly that both mothers and fathers can be non-resident parents and that both genders experience roughly the same kinds of varied arrangements as each other. The reality then, is that shared parenting should not be a gender-based issue, because it simply does not do the nuance of the real problem any credit. The real problems being faced by fathers and mothers inside the system are not legal, they are cultural, and the report itself does an excellent job of trying to distinguish between what is necessary for change and what will simply create obstacles to that change.
The earlier report also goes on to explain in detail the factors that need to be in place for shared parenting arrangements to work, and far from decrying its successes, it revels in them albeit with a cautionary tale attached. Shared parenting works in a unique set of cases, where parents can co-operate, children are happy to move around and resources and time are abundant. Interestingly, the report goes on to explain that such arrangements are often flexible in nature because the courts are not involved and parents are able to shift and change accordingly, with ease. This then, would be in direct contrast to the way shared parenting orders are likely to be ordered in court, set against a back drop of hostility and anger – arrangements like these which require flexible and refined responses are unlikely to survive long in such a harsh and prescribed environment. It’s the ultimate paradox, on many different levels – forcing what cannot be forced.
The Nuffield Foundation’s research is honest, too. The Foundation tells us that research on shared care arrangements is limited, and this is a sounding bell for those not only against the presumption but for it, too. Most of the research in this report comes from the US and little is known about how shared parenting works in the UK. However, the Nuffield Foundation are not suggesting that such arrangements cannot work – rather, they are suggesting that as a presumption, it is inadequate and lacking in the kind of sophistication needed to ensure proper contact occurs between parents and their children. The most recent research confirms this view.
The first report also tells us that shared parenting arrangements do not work well when parents are in high conflict, which begs the question, is a legal fix really the answer? When a bigger, more emotional problem is present, does the law really offer us the solution we need? The answer is obvious to anyone who has been through the court system in the UK and no doubt for many working in it.
There is a lot of very interesting information in this body of research; from findings garnered in Australia, also hotly contested by various sectors, to the everyday reality of shared parenting and what other problems it may throw up when dealing with emotional parents, from financial tactics to ongoing proceedings being drawn out, but the resounding message from this piece of research is one of caution. They are simply asking the government how they intend to define and enshrine a presumption of shared parenting.
This latest research though (the second mentioned in our post), which was co-authored by Professor Fortin and focuses on children’s experiences of contact post separation or divorce, has hit a nerve and quite understandably, groups who have viewed a presumption of shared parenting as the holy grail of contact are now seeking to challenge the research via judicial review, primarily because the recent report focuses on the experiences and memories of people who experienced separation as children, which, the challengers contend, is not a objective enough approach. We would like to thank Kip for sharing this information with us; you can access details of the challenge here, which will take place on Wednesday 12th December at the Royal Courts of Justice in London. The hearing will be open to the public and is an application for judicial review.
It is so easy to think that the law is like a magic wand and will fix everything for us, but more often than not, what is really needed is a personal touch and a dose of understanding. The paramountcy principle has lost its way – it is with dread that we may have to watch as shared parenting orders are implemented and then in the wake of tragedy, fall by the wayside and with it, the childhoods of many.
Since writing this post, which was a little hurried, we’ve had the opportunity to correspond with Professor Fortin, who co-authored the recent report above which focuses on young adults’ experiences of contact post their parents’ separation or divorce and she has very kindly clarified the following: both reports mentioned above although funded by the Nuffield Foundation are separate and not intended to be part of one body of work. There is also no intention at this time to produce a follow-up report. We apologise for any confusion this may have caused.