Family Law

Earlier this month the Government announced its intention to introduce legislation which would compel the judiciary to ensure that each parent is able to see their children regularly or even equally following a separation or divorce. This follows hot on the heels of the Norgrove report which after due consideration advised against a presumption of equality for parents.

So which of these considered opinions is correct? To answer this we need to assess what actually happens now.

It is right to say that the courts do now favour a situation where both parents have regular, frequent and fairly even amounts of time with their children after separation. However we cannot forget that this is an ideal. When this is not supported by the court there is a reason. That may be one of a number of reasons.

Perhaps it is geographical - under the Government proposal what would happen if the father were to move away and find it impossible to spend equal amounts of time with his children? Affordability of housing might dictate that the parents cannot live as close to each other as would be required for a legislated regime to work.

It may be work commitments - whether we like it or not we are still in a society where during the marriage the father is principally the breadwinner and the wife the homemaker. Arguably that is changing but it is a slow change. After separation fathers must continue to work - often long hours seeing little of the children during the week but taking on the responsibility at weekends.

Sometimes it is the fact that the children cannot cope with anything other than a stable "home" with one parent during the week spending time with the other at the weekend. Quite simply school gets in the way and the children need to have a weekday routine. All children are different and cope differently with the challenges of their parents' separation.

In summary no one can legislate for circumstances which will fit all families. Is it not the case that the Government proposal would really reinforce what already happens in the vast majority of cases?   The suggested legislation would not alleviate the difficulties which arise. These are real life situations which will continue to arise whatever the legislation. At present the vast majority of cases are such that a level of contact is agreed which works for that individual family. For those that get to court there is some factor which makes that family "different" whether it be the personalities involved or specific facts pertaining to that family. If the law dictates a set level of contact for each parent what is going to happen? The vast majority of cases will agree just as before. Those with the unusual circumstances or special criteria will be faced with a fait acccompli which does not work for them and is not in the best interests of their children. They will litigate just as before. The only difference is that it will be the parent with care who is arguing to be excused from what is laid down by the legislation whereas previously it would have the been the absent parent seeking to obtain a specific order because the legislation did not give any automatic rights.

So what does the suggested legislation achieve? It does not save court time. It does not prevent children having to witness their parents arguing over contact and going through a court battle in which sometimes they inevitably become involved. It does not wipe out any of the extra-ordinary families that exist within our society. There are of course a minority of fathers who seek equal amounts of time with their children not because that is in the childrens' best interests but because they seek control or perhaps even a more generous financial settlement. There may be families who have been subject to domestic violence - empowering the perpetrator by giving him an element of control is likely to lead to more litigation rather than less.

It is without doubt right that in a lot of cases the parents should have something approaching equality. Where that can happen experience shows it does. It is when this is not necessarily in the best interests of the children a problem arises. Those cases will not be solved by legislation affording specific or even equal amounts of contact for both parents.

Amanda Melton is a partner and the Head of the Family Team at Matthew Arnold & Baldwin.

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