‘It’s Good to Share’ – Should there be a presumption of equality between parents when it comes to caring for their children?
Bindu Bansal, Solicitor with Dutton Gregory LLP, considers the advantages and disadvantages of establishing a presumption of shared parenting
Bindu Bansal, Solicitor, Dutton Gregory LLP
From a very young age we were told that it was 'good to share' and were frowned upon when we didn't. Gut instinct also told us that it was right: sharing the pleasure and enjoyment that we had with others. Even as adults, we all know that sharing is usually 'right', but there is often a selfish desire that drives us not to share. Why should we share our satisfaction with someone else?
It doesn't stop at materials. Sharing people in our lives can be difficult, dividing the attention that one seeks with another. Similar difficulties can happen when parents separate. The concept of sharing the time, rights, duties, etc with the other parent can bring a number of problems.
Most parents are able to work out arrangements for their children without the need to involve third parties such as family members, counsellors and lawyers. However, when disputes arise in respect of that child, then a parent often has no option but to involve others and even sometimes the courts.
One way to reduce these problems, some suggest, could be a law that says that the starting point is for parents to be considered equal and have equal rights and duties, and perhaps time, in respect of a child. There are differing opinions as to whether this is appropriate and the final report of the Family Justice Review in November 2011, recommended against such a presumption.
What is shared parenting? What presumption does it create? One might consider the Shared Parenting Orders Bill (2010-2012), presented to Parliament (by Brian Binley MP) on 13 July 2010. The proposal was for there to be 'Shared Parenting Orders' which were defined in s 2(1) of the Bill as:
'…an order providing 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;'
The Bill has not progressed further and there is no sign of when or whether it will. What can a parent who wants "equality" do in the meantime? How could that parent have 'full involvement… in respect of 'major long-term issues' and ensure that his or her children 'spend a substantial and significant amount of time with both parents'?
Welfare of the Child
Any decision made in respect of a child is guided by the 'welfare principle' as per Section 1 of the Children Act 1989 ("CA 1989"):
(1) When a court determines any question with respect (1) to –
a) the upbringing of a child; or
b) the administration of a child's property or the application of any income arising from it, the child's welfare shall be the court's paramount consideration.
There is no legal definition of welfare, but a helpful checklist is provided at Section (1) 3 of CA 1989:
(3) … a court shall have regard in particular to—
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g) the range of powers available to the court under this Act in the proceedings in question.
These principles, along with the "no order" and "no delay" provisions are to be at the forefront of any decisions made, or what is sometimes referred to as 'what is in the best interests of a child'.
Consideration needs to be given to Parental Responsibility ("PR")' and whether consent is required from all persons who have this (or does an application have to be made to the court, if the consent is not given?). Section 3 of the CA 1989 defines PR as:
'...all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property…'
Other than the lack of reference to time, one would think that the type of order envisaged in the Share Parenting Orders Bill is already enshrined in law. As practitioners will know, disputes over the exercise of PR may arise in a number of situations, such as, for example, a change of name for a child, what religion he or she should practise, consent to certain medical treatment and what school to attend. In the case of Hewer v Bryant  3 ALL ER 578 (considerably prior to CA 1989), at 575, Sachs LJ expressed the parent's role as a:
' "bundle of rights", or to be more exact, a "bundle of powers"… These include power to control education, the choice of religion, and the administration of the infant's property. They include entitlement to veto the issue of a passport and to withhold consent to marriage. They include, also, both the personal power physically to control the infant until the years of discretion and the right (originally only if some property was concerned) to apply to the courts to exercise the powers of the Crown as parens patriae.'
Everyday issues are not thought to be situations where consent from all persons with PR should normally be obtained, possibly because by their nature, such decisions are immediate, short-term actions (as opposed to something long-term) and thought right for the child at that time. Obvious examples might be what clothes a child should wear or how the child is taken to school. These matters have understandably not been tested by the courts. While practitioners may have had some parents approach them about issues of a 'daily nature', the advice given is likely to have been that the parents should resolve these disputes through discussion, or simply appreciate that there are often two sets of different rules in two separate homes.
With the welfare principle in mind and assuming both parents have PR, one could argue there is scope for both parents to have a degree of involvement in the child's daily life, but one could see how quickly taking such an approach would be simply impossible and would potentially lead to misuse and an inappropriate level of interference in the child's time with each parent. Major decisions on important long term issues affecting the child's welfare are different.
However, for most parents where to draw the line between "minor short term" and "major long term" issues is difficult. The question of 'full involvement' appears to be unresolved and some parents believe that a change in legislation is therefore needed. PR seems to exist more as a legal concept than in the real world, where often the perception is that one parent assumes a primary role whilst the other parent becomes of secondary significance. A whole vocabulary has evolved to describe such parents, "Primary Carer" and "Absent Parent" being the most obvious and often badly misleading descriptions.
Residence and Contact
What exactly does 'time' mean in the Shared Parenting Orders Bill? It is possible to interpret this as the child's time that is allocated to the parents. Currently this is of course dealt with by residence and contact orders. Section 8 of CA 1989 provides:
"a residence order" means an order settling the arrangements to be made as to the person with whom a child is to live;
"a contact order" means an order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other;
The definitions themselves are not ideal and the distinction between residence and contact blurs and breaks down on an invisible line as the time spent with the "absent" or "non resident" parent increases. It is arguable whether these labels have helped or hindered separated parents and their children since their introduction. Residence and contact orders can be highly contentious as the parent with the residence order may be viewed as the main day to day carer and the parent with the contact order, as someone the child will see as and when possible.
In order to readdress the balance and the failure in practice of the concept of PR, Shared Residence Orders ("SRO") came into fashion.
Section 11(4) of CA 1989 provides:
'Where a residence order is made in favour of two or more persons who do not themselves all live together, the order may specify the periods during which the child is to live in the different households concerned'
To have a better understanding of the situations when a SRO could be made, a closer look at the case law is needed. Historically, it was not a common order and prior to the CA 1989, it was thought a settled home with one parent was in the paramount interests of a child (Riley v Riley  2 FLR 429).
After 1989 and the introduction of the terms 'residence' and 'contact', while there were concerns about making a SRO where issues between parents had not been resolved, if the order offered a 'positive benefit' to the child, it was thought appropriate. This could be the case notwithstanding the child having a settled home with one parent (A v A (Minors) (Shared Residence Order)  1 FLR 669). It is interesting to note that the court thought it appropriate to specify a justification beyond simply applying the welfare principle in Section 1(1).
A year on from A v A and a SRO was used to confer PR on a non-biological father because, in the absence of such an order, the child would not have had the 'comfort and security' of knowing that the father wanted to treat the boy 'as his own', emphasising that 'parenting is a continued and shared responsibility' and that the order was of 'important practical therapeutic importance' (Re H (Shared Residence: Parental Responsibility)  2 FLR 883). Reference was made to shared responsibility, possibly to make the parents appear equal. However, had PR not been an issue, it is not clear whether a SRO would have been made.
A more telling change in approach came about in D v D (Shared Residence Order)  FLR 495, where the court granted a SRO to 'reflect the reality of the children's lives'. In this case the court moved away from the notions of "positive benefit" and "exceptional circumstances" and went back to the welfare principle and the best interests of the child. The case did involve a high level of animosity, but despite this, where the child could be spending a substantial amount of time with each parent, the order was made.
Over the following years, the concept of shared residence continued to develop beyond its statutory definition. Further examples where an SRO was made include:
• Where the parents lived a significant distance apart, it did not prevent an order from being made. The time did not need to be equal between the two homes, if the homes offered equal status and importance (Re F (Shared Residence Order)  EWCA Civ 592).
• Where parents were incapable of working in harmony, the order reflected the reality of the children's lives. Where sole residence could be misinterpreted as enabling control by one parent, the order would show that the parents were equal in the eyes of law and had equal duties and responsibilities (A v A  1 FLR 195).
• Where the children wanted the shared arrangements to continue and there was no need for a harmonious relationship as a prerequisite to a SRO (Re R (Residence: Shared Care: Children's views)  EWCA Civ 542).
• Where the order made reflected the reality that parents had established. Shared residence did not automatically follow equal time, or proportions approaching it. The day to day decisions would be with whomever the child was with at the time but the important decisions would be made jointly. Parental responsibility made them equal in the eyes of the law and gave equal duties and responsibilities as parents (Re P Shared Residence Order)  EWCA Civ 1639).
• Where equality was thought to be the starting point as it was in the children's best interests (taking into account the strength and clarity of their wishes) (Re M (Residence Order)  EWCA Civ 66).
• Where an SRO would be psychologically beneficial to the parents in emphasising the equality of their responsibilities towards the child and would thus indirectly benefit the child (Re W (Shared Residence Order)  EWCA Civ 370).
• Where an order was made to avoid the psychological baggage of right, power and control, attached to sole residence orders. SROs were considered nowadays 'the rule rather than the exception', even where quantum of care was unequal (Re AR (a Child: Relocation)  EWHC 1346).
It could be argued that the courts were trying to offer parents an 'equal, shared parenting' status in the cases set out above. If so, what might have been the reasons for David Norgrove making his very different recommendation in the Family Justice Review?
Family Justice Review
Practitioners will be aware of the reports published by David Norgrove in March 2011 (interim report) and November 2011 (final report). The final report, on the possible creation of a legal presumption of equal rights, said:
'No legislation should be introduced that creates or risks creating the perception that there is a parental right to substantially shared or equal time for both parents'
The reason for not recommending a presumption was due to the framework that was in place in Australia (since 2006) of a 'meaningful relationship' which led to increased litigation over the word 'meaningful' due to its interpretation being applied to time the child will spend with each parent.
The report did say that:
'Government should find means of strengthening the importance of a good understanding of parental responsibility in information it gives to parents'.
Government Response to the Review
The Government did not wholly agree with the conclusion arrived at by David Norgrove on the presumption. In its response to the final report in February 2012, it said:
'Both Governments believe that children benefit from both parents being as fully involved as possible in their child's upbringing, unless there are safety or welfare concerns' (Para 59) and
'The Government believes that there should be a legislative statement of the importance of children having an ongoing relationship with both their parents after family separation, where that is safe, and in the child's best interests' (Para 61).
There are conflicting opinions on the concept of a presumption of equal parenting, from a range of support groups and organisations. It could be said that these are largely gender based (although note the view of the Law Society and the charity Gingerbread). Some of these are summarised below:
Views on Shared Parenting/Presumption
The Association of Shared Parenting.
"An arrangement whereby children freely enjoy the love and nurture of both parents and their wider family following separation or divorce …it does mean that sufficient time is spent with each parent for the child to view each parent as a parent rather than an aunty or uncle."
"…what we call 'shared parenting' which would ensure children retain the love and care of BOTH their parents and grandparents…"
"As a country we can't keep telling fathers to have equal responsibility and not give them equal rights. And we can't expect our children to grow up as well-adjusted adults when we consistently treat them in such an appalling way…."
"…shared parenting and the right to a meaningful relationship with both parents is not a question of time, but of involvement in their physical, educational and emotional development..."
"…not about an equal share of time; it is about ensuring the full involvement of both parents in a child's life, with both parents having an equal say in areas such as education and health, as well as routine and leisure time…"
…"Such presumption risks subordinating a child's best interests to the parents' expectations of 'equal rights'…."
"… agree strongly with the review's assertion that there is no need to insert into legislation the need for shared parenting."
"… all children have the right to meaningful relationships with both parents where this is safe and is in the best interests of the child but we also think that current legislation contains the provisions for shared parenting where it is safe."
"…in the vast majority of cases, children in separated families benefit from good quality relationships with both parents after separation. However, it's vital that courts retain the principle of making decisions based on what is in the best interests of the child in each case. Any move to change the legislation would only result in confusion and risks more, rather than less, litigation."
Whilst case law shows a move towards a greater recognition of shared parenting in appropriate cases (whilst not dealing with the issue of any proposed presumption in favour of it), in T v T  EWCA Civ 1366, the court did 'back-track', stating that an order for shared residence was not 'the rule rather than exception' (disagreeing with Re AR (Relocation)  EWHC 1346 (Fam)) and that the order was only ever made where it was considered to be in the best interests of the child.
The terms 'residence' and 'contact' were a far move away from the now aged terms of 'custody' and 'access', although it is remarkable that those terms are still commonly used by parents, many of whom were not even born when they had legal meaning. Did the change in terms have a positive effect? One suggestion has been to remove the terms 'residence' and 'contact' altogether, thereby negating the perceived control that one parent has over the other, and to have a 'child arrangements order' instead. Families Need Fathers supports this as it would make decisions 'more child focused' but the Law Society thought that 'changes in terminology may prove to be cosmetic and the reality is likely to remain unchanged'.
In February 2011 at the House of Commons, the All Party Parliamentary Group on Family Law and Court of Protection held a meeting to consider the pros and cons of the presumption. Once again, the outcome of that showed a split opinion, but 'the vast majority of those who came to the meeting wanted the same thing; 'to protect the best interests of children involved'.
The writer can appreciate arguments on both sides regarding the presumption. Having both parents start on an equal footing does have its advantages and for a child could be important in understanding that one parent does not have more control over them than the other. However, it has to be considered whether that will be in the best interests of the child, as giving parents equal rights as a starting point could generate more conflict and result in more cases at court, for a judge to then have the 'final say'?
The writer agrees that changes need to be made, perhaps not to legislation, but to improve education and understanding of how to exercise decisions for the benefit of children, bearing in mind the principles laid down by the current legislation.