Sonia R Crawford
Senior Lecturer, University of East London
Barrister, Inner Temple:
Despite the opposition of the Family Justice Review, the Government has indicated its support for a change in legislation to support the introduction of a legal presumption of shared parenting.
It is evident that new legislation for shared parenting is contentious. This article considers the arguments for and against shared parenting, together with the relevant legislation and research. An evaluation of the current legislation and case law provides a backdrop against which an assessment is made and, indeed whether the call for reform and a presumption for shared parenting are justified and necessary. It is suggested that parental responsibility has been downgraded to recognition and approval of the status of the father. This is rather than as per the section itself 'all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to a child' (section 3 (1) 1989 Act), and if such were not the case, there may have been less support for a presumption of equal or shared parenting.
In so far as legislation and the cases are concerned, section 11 (4) Children Act 1989) allows the courts to make a shared residence order and the courts have made it plain in decided cases, that the time spent with each parent does not have to be equal, neither do the parents necessarily have to agree with each other but weight will be given to whether the children are satisfied with the arrangements if a shared residence order is to be made.
However, the courts do have to, as per section 1(1) of the Children Act 1989; consider the child's welfare as its paramount consideration before making an order and thus there is a tension between the rights of the parents and the best interests of the child. The research suggests that shared residence and shared parenting can cause a change to the relationship with their parents and their ability to adjust emotionally post separation, and works best in families where income is high and the parents agreed shared care without involving the courts. The authors conclude given the research, the changing case law and current legislation, any change in legislation using the word 'equal' or 'shared' is likely to exacerbate or lengthen the conflict between the parents, and lead to more dissatisfaction with the court system.