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'Shared parenting' provision to be inserted into Children Act section 1

Proposed clause and explanatory note published

The Department for Education has announced that it proposes to introduce amendments to the Children Act 1989 in order to provide for a presumption of shared parenting. A new section 1 (2A) will be inserted into the Act as follows:

"(2A) A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child's welfare."

The restrictions upon the presumption will be elaborated in new sub-sections (6) and (7) as follows:

"(6) In subsection (2A) "parent" means parent of the child concerned; and, for the purposes of that subsection, a parent of the child concerned -

(a) is within this paragraph if that parent can be involved in the child's life in a way that does not put the child at risk of suffering harm; and
(b) is to be treated as being within paragraph (a) unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child's life would put the child at risk of suffering harm whatever the form of the involvement.

(7) The circumstances referred to are that the court is considering whether to make an order under section 4(1)(c) or (2A) or 4ZA(1)(c) or (5) (parental responsibility of parent other than mother)."

The explanatory notes state that the purpose of this amendment is to reinforce the importance of children having an ongoing relationship with both parents after family separation, where that is safe, and in the child's best interests. The effect of this amendment is to require the court, in making decisions on contested section 8 orders; the contested variation or discharge of such orders; or the award or removal of parental responsibility, to presume that a child's welfare will be furthered by the involvement of each of the child's parents in his or her life, unless it can be shown that such involvement would not in fact further the child's welfare.

In July 2012, during the course of the Government's consultation on various options for reform of section 1, the Chair of the Justice Select Committee, Sir Alan Beith, wrote to the Prime Minister setting out the Committee's opposition to the insertion in law of a legislative statement changing the present responsibility to safeguard the rights of the child in an attempt to promote shared parenting.

On the 1st November the Children's Minister, Edward Timpson, wrote to Sir Alan, stating that over half of the respondents to the consultation supported the Government's view that a presumption of shared parenting is the right approach.

The letter to Sir Alan Beith can be read here. The proposed clause is set out here. The explanatory notes and process diagram are here. To read the summary of consultation responses and the Government's response to them, please click here

The Law Society has described the proposal as 'seriously flawed'.

Families Need Fathers has welcomed the Government's announcement that they intend to introduce a 'shared parenting clause' into the Children Act 1989.  

Ken Sanderson, CEO of Families Need Fathers, commented:

"The Government has rightly acknowledged that in the vast majority of cases a child's welfare will be best served by ensuring that they can continue to benefit from the full involvement of both parents in their lives. This is a very positive move, and will help to ensure that as many children as possible can continue to benefit from a meaningful relationship with both parents following separation and divorce."

Elizabeth Hicks, a Partner at Irwin Mitchell, said that it was vital that the wellbeing of children remains a fundamental priority but warned that these plans could have the opposite effect. She explained: 

"The introduction of legislation may lead to an increase in parents choosing to launch legal battles to further their own interests following a separation, a move which could only serve to put children through a significant level of emotional turmoil and ultimately impact on their best interests.

"In Australia, it is widely accepted that the introduction of 'shared parenting' led to these kinds of problems and this kind of trend cannot be ignored."

Hicks added that there were other options that the Government could consider in terms of ensuring children come first.

"This legal right shifts the focus on to parents rather than the more important issue of what is best for children. A better approach would be to offer more support to parents, with the aim of increasing the use of mediation and educating parents on how they should maintain a focus on their youngsters.

"If parents come into conflict, then a child is likely to be exposed to it and could have an overall impact on their wellbeing. While divorcing parents may have suffered a significant relationship breakdown, they need to recognise that working together can play a huge role in shaping a child's life for the better."