There has been some very interesting debate on Researching Reform recently on the presumption of shared parenting but we’d like to extend the debate and take a look at the possible implications of such a presumption and ask whether this legal remedy is really a cure, or a likely cause of future harm to the welfare of children experiencing family breakdown in England.

The family justice system is often described as a blunt instrument by professionals who work in it because the family courts offer very little by way of truly tailored outcomes, restricted by process, conflicts of interest, culture and whether we like it or not, wildly fluctuating levels of competence in every sector of the system. Ensuring that families get the best possible outcome is fraught with constraints and results in both mothers and fathers feeling let down. And it is the children who suffer the most as a result, because the system still does not understand children well enough.

There can be no sensible debate over the issue as to whether children should have the opportunity to spend time with both their parents. It is hugely important for children to be able to do that whenever possible, not least of all because our children should have access to the people who love them. But when we look at a system which is attempting to cater for all families from all walks of life, with differing backgrounds and perceptions, we have to make sure that whatever processes are in place can deliver the most efficient and personal service, for everyone. Today, that service is still unacceptably limited.

Whilst speculation runs rife over what the government intends to do in relation to shared parenting, it has made it clear that it intends to consider placing some kind of presumption of shared care inside the Children Act 1989, which might require courts to presume that shared care should be the norm unless evidence can be shown to the contrary either by inserting this consideration as part of the welfare checklist or adding it in as a starting point. The exact list of suggestions is added below:

  • The Government would like to amend the Children Act 1989 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 – unless the evidence shows this not to be safe or in the child’s best interests”.
  • requiring the courts to have regard to a principle that a child’s welfare is likely to be furthered through involvement with both parents;
  • providing that the court’s starting point in making decisions about children’s care is that a child’s welfare is likely to be furthered through involvement with both parents, and;
  • inserting a new sub-section immediately after the welfare checklist, setting an additional factor which the court would need to consider.

There is nothing wrong with the suggestions themselves. They are reasonable and to our mind rational, but they fail to prescribe in detail exactly what they mean by ‘involvement with both parents’. And this is what has been the cause of much debate.

Shared parenting by definition implies that children are spending time with both  their parents. At its purest interpretation, it means just that – no set amounts of time, no prescribed forms of contact. But this is not what has caused concern amongst professionals and parents inside the system. The real wrangle is over the much more political definition of shared parenting, which automatically assumes that children should spend equal amounts of time with each parent.

Until the government clarifies what it means by ‘involvement with both parents’, speculation will continue to mount.

But there is also a question mark over the legality, or compatibility of including a presumption of shared parenting, of any kind and definition, when we consider the existence of the Paramountcy Principle, which tells us that the welfare of the child must be paramount when deciding family cases. At its best, an added presumption would simply behave like an echo of the Paramountcy Principle, making it a pretty innocuous addition and at worst, where ‘involvement’ were to be defined as a 50/50 time share, it would be in direct contravention of The Principle, whose starting point is not prescribed, but fluid, allowing for the possibility of greater personalisation for contact and therefore better outcomes for children.

The Paramountcy Principle is the finest standard we have in ensuring that children can be with both their parents where it’s right for them to be so, but it is not working as well as a safeguard as it should, and the government’s recent decision to consider adding a presumption may well be an indication of an acknowledgement on this front, or a very ambiguous nod to fathers’ rights groups who have long campaigned for a change in the law. But what if these quarters are wrong? What if our Paramountcy Principle is failing us, not because it is not good law, but because it is law without the support on the ground which it needs to succeed? And if that is the case, (which we believe it is) a presumption in shared parenting is doomed to fail also, whatever its definition and will leave fathers’ rights groups feeling more than a little disappointed.

The family justice system doesn’t need more law. What it needs is a thorough revamp, which we hope it will receive through Mr Justice Ryder’s modernisation programme and which needs to involve some serious culture changes, many of which we have written about before. A presumption of shared parenting, however one looks at it, is a presumption too far.