Family Law

On Tuesday, 6 November, 2012 at 2:36 AM, according to timing on an e-mail from the Department of Education, the UK Government announced its response to the consultation regarding amendments to the Children Act 1989 on the question of parental involvement in the lives of children at a time of parental separation.

On Tuesday, 6 November, 2012 at 4:06 PM at the Principal Registry of the Family Division in a hearing between two litigants in person at which I was the deputy district judge, the father announced proudly and assertively that the government had just introduced equal shared care.

In just 13 1/2 hours (including the wee hours of the night when most family lawyers were snugly tucked up in their beds with their Red Book on their bedside table), the jungle drums had been beating very loudly in certain communities and the news had gone out loud and proud that there was legislation for equal shared care. It might be that another family court judge in England and Wales on Tuesday had an even earlier call to arms and insistence on an equal shared care order, in which case I won't claim the record!

Let us for a moment ignore the minor detail that no legislation whatsoever has been introduced. Even the response paper said a draft Bill would follow.

The fact is that whatever the protestations and formal announcements, England is at very real risk of following the path of Australia six years or so ago where the public had an expectation of equal shared care whatever actually was the real content of their new children law.

Indeed, England should be less likely than Australia to be at this risk. The Australian Parliament amended the Family Law Act 1975 by means of the Family Law Amendment (Shared Parental Responsibility) Act 2006. There were suspicions at the time that the then Prime Minister, John Howard, might deliberately have given out a message that the new legislation anticipated equal time and equal shared care for the purposes of gathering votes from particular constituencies for the forthcoming election. Whatever may have been, Australian judges and justice administrators have spent the intervening years emphasising it does not mean automatic equal time, and trying to alter and change expectations of the public. It was still being discussed at the Australian biannual Family Lawyers Conference in Tasmania last month. It has been a classic lesson in jurisprudence of the contrast of the content and expectations of the law.

The lessons and problems with the Australian legislation has been much debated in Australia but also in England in the past 12 months as we have looked at possible reform. Whatever the differences on the possible reforms in England, there has almost been common accord that we must not follow the Australian example with any misleading information that gives artificial hopes and expectations of equal shared care and equal time. This was adamantly set forth by the Family Justice Review, so much in fact that in their final report they went back on the interim recommendations in part to avoid any suggestion of shared care equal time.

In the UK Government's consultation they were equally adamant that this was not the intention of the consultation or any of the possible outcomes.

On Tuesday morning when the UK Government announced its response to the consultation, it was still, for such early hours, raucously shouting that this did not mean shared care equal time. It said, for example: "whatever legislative approach we take, we must be careful to avoid any implication that a child's time should be split equally between parents". It explained that many fathers wanted the changes to "go further and start with a presumption of equal care". Opposition to the changes came from those who felt it: "could lead to unrealistic expectations (and increased conflict) among parents who think the change is a presumption for equal time". There were other similar remarks in the Response Paper. The Government was clear. This did not mean equal time shared care.

From the experience of Court on Tuesday and some public responses, the message of no equal shared care has decidedly not got out there! The contrary message has been heard and extensively passed on, mischievously or innocently.

Whilst the Government may rightly be keen to promote significant involvement of both parents in the lives of children in the context of safety, the risk is that this message is not heard above the expectation that something very different is being delivered. The challenge for the policy makers is how to spell out the reform in legislation without any suggestion of automatic equal shared care. The much bigger challenge is for MPs and would-be MPs not in any way, by hint or nudge or explicit comment, letting it be thought this is what this legalisation may accomplish. To do so would be an appalling disservice; to the family justice system which would have to cope with the fall out as did our Australian colleagues, but also to the children who would caught in the middle.

Shared care is a perfectly commendable concept and right for some children. Equal time works exceedingly well for some children sometimes. But not when automatically expected or presumed.

So what happened in Court on Tuesday? In fact the father was already having close to equal time and it was about money. Curious then that at the conclusion the mother said she intended to apply for sole care. Best interests of the child? Possibly. Impact on child support? Quite probably. Because whatever the final form of these present Government reforms, commendable as they are in principle, child support calculations and arrangements have a far greater impact and divisiveness on parenting, both in its present CSA incarnation and in the new scheme arriving any day soon. To analyse and overcome the adverse impact of CSA on parenting arrangements would be a better area for government reform and do more good for children.

David Hodson is a Partner at The International Family Law Group LLP. He acts in complex family law cases, often with an international element.  

He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and chair of the Family Law Review Group of the Centre for Social Justice.

David is the author of a new major reference work, The International Family Law Practice as well as A Practical Guide to International Family Law (Jordan Publishing, 2008). He can be contacted on dh@davidhodson.com.

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