Government’s plans for shared parenting are ‘seriously flawed’, says Law Society
Children’s Commissioner also expresses ‘grave concerns’
The Law Society and The Office of the Children's Commissioner for England has each published its response to the government's consultation on shared parenting after family breakdown.
The Law Society
The Law Society, whilst welcoming the government's desire to promote cooperative parenting, says that the intention to do so by amending the Children Act 1989 is seriously flawed. The Society does not accept the premise that legislation is needed at all.
It says that courts already operate on the basis that the welfare of the child is likely to be enhanced by the continued involvement of both parents, and there is no evidence of bias towards either fathers or mothers.
The Society expresses concern that legislation will modify parents' behaviour in ways which will prove counterproductive. Although the Minister says that the proposal is categorically not about giving parents 'equal right to time with their children' that is not how it has been understood or portrayed in the media or by specific interest groups. It believes that such legislation will lead to confusion, creating more litigation.
A legislative presumption or starting point, it says, is very likely to impact on the application of the paramountcy principle. The intended effect of any of the proposed legislative changes is to ensure that one factor, the parent-child relationship post-separation, is given greater prominence by the courts when they make a welfare assessment.
The Society's view is that in attempting to dispel a 'perception' of bias amongst fathers by a legislative presumption of cooperative parenting, the government risks replacing this expectation with one of 'equal parenting'.
The Law Society's response can be read in full here.
The Office of the Children's Commissioner for England
The Office of the Children's Commissioner also welcomes the intention behind the consultation: that children should continue to benefit from their parents' involvement in their lives after separation and divorce. However, it expresses grave concerns about the proposal to legislate on this issue.
The OCC also stresses that nothing must divert attention from the paramountcy of the child's welfare when decisions are made about them in court.
The response makes the following points:
- There is no evidence to support a change in the law.
- The current paramountcy principle ensures that decisions are made without general presumptions and which are in the interests of each individual child.
- Parental responsibility is now available to most fathers through a range of routes. Furthermore even if a father does not have parental responsibility, it is expected that he should be consulted in decisions concerning his child.
- The proposals raise the prospect of an increase in disputes around the suitability of the father (mainly) to have substantial contact with the child, which would divert attention from the focus on the child's needs.
- The OCC has concerns about protection and possible harm to children as a result of a change in the legislation.
- The OCC believes that there are several related issues which need to be considered in the context of enabling children to benefit from parental involvement and ensuring that this protects children's safety and wellbeing, including:
- the quality and availability of assessments which enable a full consideration of risk to children to be undertaken when decisions are being made by the court;
- the kind of advice and support which could be made available to help separated parents to make the best arrangements for their children;
- the extent, quality and impact on children of supervised contact;
- and the availability to children of legal recourse.
The OCC's response can be read in full here.
The Law Society's Gazette reports what it has termed 'the all-round roasting for family justice reform' expressed by members of Parliament, judges and expert practitioners at a recent seminar. To read that report, pleases click here.