22 July 2010

Equal time or quality time?

Last week Bill Binley, the Conservative MP for Northampton South tabled his private member's "Shared Parenting Bill". According to the draft, the Bill proposes an amendment of the Children Act 1989 to create a legal presumption that a Shared Parenting Order ("SPO") will enhance the welfare of the child.

SPOs are defined as an order that both parents have a full involvement in the upbringing of a child, particularly in respect of major long-term issues, and requiring that the child must spend a substantial and significant amount of time with both parents.

Mr Binley's rationale is that "very often Court Orders are made without the knowledge of the importance of a father's involvement and [his] bill will make sure that neither parent is shut out from a child's life when sadly a relationship breaks down."

I'm afraid Mr Binley is wrong on both counts.

In over thirty years of practice I cannot recall a single case in which an order was made concerning the upbringing of a child in ignorance of the father's role in that child's life. It may well be that in some instances judges have made findings that a father's role in their child's day to day care was less than the reality. Likewise I'm sure in other instances courts have overstated a father's role. That, I'm afraid, is the risk of litigation.

The second limb of the argument is even less convincing. Children are not their parents' possessions, they are autonomous individuals. A child has the right to adequate parenting and parents have an obligation to nurture their children. It is a sad fact that children's rights are frequently ignored, most often when their parents are unwilling or incapable of meeting their obligations post separation.

No one who operates in the Family Justice System seriously doubts that children tend to prosper when they have a fulfilling relationship with both of their parents following separation. Likewise it is generally accepted that children who lose touch with one of their parents tend to do worse at school, in the job market and, the evidence suggests, are more likely to come into contact with the Criminal Justice System.

That said, the mischief this Bill is aimed at remedying cannot be resolved through amending legislation and extending the corpus of statutory presumptions. Parent / child relationships are based on, and augmented by, the quality of the experience from the child's point of view. Separated parents who understand their obligations are able to work together to ensure their children receive the best possible co-parenting. Whilst the amount of "face time" in this context is irrelevant, the quality of the child's experience is everything.

No amount of legislation can enhance the life prospects of the children of parents who can not or will not co-parent effectively. Court orders can do many things, but they can not compel intransigent mothers and fathers to become better parents.

Sandra Davis is a Partner and Head of Family at Mishcon de Reya. She is a member of the firm's management board, a Fellow of the International Academy of Matrimonial Lawyers, the author of International Child Abduction (Sweet & Maxwell, 1993) and a member of the Lord Chancellor's Child Abduction Panel. In 2009 she was shortlisted in the Citywealth Magic Circle Awards as a Leading Lawyer.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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