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All Party Parliamentary Group on Family Law meets to discuss shared parenting

APPG considers the pros and cons of shared parenting legislation

On Tuesday, 15th February, The All Party Parliamentary Group on Family Law and the Court of Protection held a speaker meeting in the House of Commons which focused on examining perceived advantages and disadvantages on shared parenting as a presumption in law. 

The meeting took place in the Grand Committee Room and guest speakers for the evening were Dr Samantha Callan, Chairman in Residence at the Centre for Social Justice, and David Hodson, Chair of the Family Law Review for the Centre for Social Justice, both making the case for the continued exclusion of shared parenting as a legal presumption and Dr Craig Pickering, CEO of Families Need Fathers and John Baker, the policy director for the Association of Shared Parenting both of whom were putting forward the position that such a legal presumption was necessary to ensure that continued contact between both parents and their children, where possible, could take place.

John Hemming MP, acted as chair for the evening and as introduced the speakers. The first speaker was John Baker, speaking for the inclusion of a legal presumption of shared parenting and who began by stating that it was the Association of Shared Parenting's intention to promote a draft Parliamentary Bill to that end.

His speech concentrated on  four areas: why children should have a 'right' to both parents; how parenting time might be shared; how decisions in the family justice system should be made and finally, some quotes from the United Nations Declaration on the Rights of the Child.

John went on to explain the current position in law as he perceived it in relation to contact post-divorce or separation, the imbalances in the system he felt made the current law ultimately unfair and the powers assumed by the resident parent or the primary carer which he explained could lead to a manipulation of contact that was not ultimately in the best interests of the children involved. John also considered the difficulties faced by parents, whether due to disagreements between each other or the introduction of a new partner which sometimes upset the existing balance, with parents unable to resolve a change in circumstances amicably.

On the theme of conflict, John continued that when communication broke down, the parent whose contact was stopped found that he had one material right, which was to sue for contact. John argued that in care proceedings there was already a presumption that both parents would be able to have contact with their children and asked why this could not be extended to private family law matters.

With the process in mind, he spoke about the contradictions he felt were inherent within the family justice system: the belief that every family is unique, only to find that very basic and limited solutions are available to deal with difficulties; the small amounts of time awarded to the non-primary carer and stereotypes inside the system which were sometimes misplaced, particularly in relation to gender roles. John expressed the concern that children were already emotionally vulnerable after the separation of their parents and welcomed the shift in focus on trying to get parents to agree but did not feel that mediation was the answer. Rather, John explained that mediation was an agreement between two adults and as such would be less likely to make the welfare of the children involved paramount. Instead what was really needed was an advocate for the children and a requirement that high conflict couples should go to conciliation services in order to work on their communication.
John ended his speech by quoting specific articles of the UN Convention on the Right of the Child as a reminder that government and the judiciary need to stay child focused and to respect the importance of family, by protecting the rights of our children. 

The next speaker was Dr Samantha Callan, who began her speech with a cautionary tale: alluding to the Great Leap Forward, Dr Callan explained that when conditions in a sector appeared to be far from ideal, it was always tempting to assume that radical changes needed to be made in order to address a perceived stagnation but that it was rarely the case such revolutions would produce the kind of results that would merit such a tremendous overhaul and could even lead to greater disparities in the future. 

Dr Callan divided her speech into three parts, arguing firstly that any shared parenting bill, although seen as a Great Leap Forward in relation to modern day contact issues, would in fact have unintended but very serious consequences particularly on the most vulnerable members of the family unit, not least of all in relation to high conflict families. Dr Callan's second point would focus around legislating shared time and the possible outcomes this might have by looking at research already carried out in Australia and lastly, offering alternative ways of addressing the evolving roles of parents in contemporary Britain, keeping the welfare of the child paramount in law and allowing that right to remain a priority.

After explaining these sentiments, Dr Callan spoke about the work of the Centre for Social Justice, the research it carried out highlighting family breakdown as a driver for poverty and its commitment to having both parents in the life of a child where possible. She went on to explain her concerns about a shared parenting bill, explaining that it was too presumptuous a tool, by virtue of its starting points which focus on shared parenting and shared parenting quantified by amount of time as being in the best interests of a child. She went on to say that shared parenting was a viable option for those families not in high conflict scenarios who also shared geographical proximity, good communication skills, child focused arrangements, good commitment levels to make shared care work, family friendly work practices for both mums and dads and lastly, financial comfort, particularly in relation to women.

Turning to high conflict families and the court process, Dr Callan stressed the findings of Australian research which indicated that a presumption of shared parenting negatively affected the mental health of children concerned and that those parents who pressed for equal time were not always able to keep the best interests of the children in mind. Compounding these issues was the Australian court process which, although it did not expressly state equal time as the gold standard, found that this was implicitly considered to be the case and so led to the misconception that this time share had to be implemented, save for those cases where violence or other similar problems were present.
Dr Callan provided some final thoughts for solving the dichotomy between the current parenting reality and the lag in the law. She spoke of principles, rather than presumptions, being laid down by government and suggested this could be done by adding to Section 11 of the Children Act in 'the general principles and supplementary provisions' section. 

Following Dr Callan, was Dr Craig Pickering, who focused his speech on addressing the counter arguments for shared parenting. Dr Pickering began by looking at the concept of parental responsibility and asked if it was enough to ensure that both parents were treated as equally important in relation to contact. He concluded that it was not and that in practice, looking at the experience of Families Need Fathers' members and other clients, this in itself was not enough to ensure contact for fathers because the law placed too many other obstacles in the way and that parenthood was in itself too narrowly defined within the family law system.
Dr Pickering spoke about the presumption of shared parenting as a direct fifty-fifty split and the view that children generally do not like to divide their time in this way. He explained that shared parenting as a presumption does not automatically suggest an exact and equal split of time but should be considered as an option and was certainly the preferred allocation of time for Families Need Fathers. Dr Pickering went on to say that despite this, the generally accepted split in shared parenting was seventy-thirty and that FNF agreed with this.

Leading on from this sentiment, Dr Pickering felt there needed to be parenting plans set out which clearly explained the arrangements between families, agreed by parents and where possible, the children too, but bearing in mind the age of the child. Continuing, he spoke about the need to break away from the concept of residence, to accept that children from separated families should have two homes as the norm and that the current terms being used are not synonymous with the reality on the ground and fail to incorporate these changes.

Moving on to the topic of high conflict families, Dr Pickering felt that these families were not without hope and that what was needed were greater resources for dealing with intractable disputes, offering counselling with the aim of getting parents to think about the welfare of their children and their best interests.

Touching upon another area, Dr Pickering addressed the argument that time with children was not about quantity but about quality. Citing several research papers, Dr Pickering explained that the sentiment was misleading and that in fact the research showed that whilst quality of parenting was in fact more important than quantity it did not by definition imply that quantity was in and of itself an irrelevant factor. Further to this, Dr Pickering went on to speak about shared parenting and the perceived dangers of the risk of abuse. He explained that allegations of abuse in relation to ex-partners needed to be examined properly, evidence acquired and that everyone must be viewed as innocent until proven guilty. However, he felt that abuse once evidenced should not be an automatic block to contact and spoke about further research which showed that half of parents in a survey who were eventually able to sort out contact arrangements amicably had also experienced family violence. Dr Pickering's final sentiments revolved around the need to improve the system's ability to sort false from true allegations and that CAFCASS should refocus and work more closely with other agencies on this front. 

The final speaker for the evening was David Hodson who surprised us all by introducing what he called the three dinosaurs into the room for our event! These were custody, care and control and access. David went on to explain the origins of family law in relation to these and how they evolved to include the concept of a residence order. Using case law and legislation, David walked us through the evolution of family law, the changing roles of parents that would eventually impact upon the system's ability to deal with contact a certain way and the now embedded use of the shared residence order, which David explained has been a predominant theme for the last decade.

Explaining the law on shared residence orders, David told us that in 2006, a case called Re P (2 FLR 347), the judge concluded that there did not need to be exceptional circumstances to award such an order and that, as Lord Justice Wall said, the order sends out a message that neither parent has greater rights than the other in relation to the children involved. Furthemore, the court expected the parents to work together in the best interests of their children. However, David went on to highlight case law which observed that shared residence orders could be used to disrupt the other parent's role in the management of a child's life. David gave a concise summary of how the judiciary had developed the shared residence order over time and with some pace and then mentioned the exuberance of Mr Justice Mostyn, who overstated their frequency in a case upon which he was presiding at the time, only to be 'booked' by Lady Justice Black, one of the speed cops as David called her! In another case Lady Justice Black said that Mr Justice Mostyn's comments went too far, that the order was only ever made where it was considered to be in the best interests of the child and that it is not a pre-requisite to near equal time in relation to contact.

David noted the fast pace of the evolution of the shared residence order in England to lead us into the observation that, had it not been for what transpired in Australia, the family courts in England may well have continued at speed, resulting in such orders becoming the norm. However, the equal time legislation in Australia (The Family Law Amendment (Shared Parental Responsibility) Act 2006) changed things. David explained that the Act caused several problems, not least of all because it moved away from parenting and focused instead on time.

David then talked about the work of the Centre for Social Justice and in their 2009 report "Every Family Matters", which David explained was perhaps the most comprehensive review ever made of family law over the past forty years, a set of recommendations were made, which he felt were holistic and at times controversial but reinforced the notion that radical change was not needed. In conclusion, David noted that England had not chosen to focus on time in family matters, that shared residency is not a presumption (and that if it were it would not be in the best interests of children, as this needs to be decided on the merits of each case) and that the Children Act 1989 is not redundant but thanks to its flexibility, remains true to the paramountcy principle, which it enshrines. 

Once the speeches had been delivered, the floor was opened for questions. The event was very well attended and the audience had a lot of questions for the panel members, which unfortunately were not all answered due to the sheer volume of questions that were being directed at the panel. However, John Hemming chaired the event deftly and tried to scoop up as many questions as possible in the time allowed. 

The first question of the evening came from Lord Listowel, who asked the panel their thoughts on whether there may be needed a strengthening of the judicial capacity in this area due to the complexity of the work and whether any family review would look at how judges are appointed to work in the family courts and perhaps to consider employing barristers who may not have necessarily worked in the field conventionally but who had the skills to undertake this kind of work, thereby allowing for a higher volume of judges in the system. David Hodson replied by saying he felt there was a real need for technically trained judges who were highly skilled and more continuity in judicial involvement. Dr Callan also added that the Centre for Social Justice recommended another review whereby those working in a field where children are involved should understand the basic developmental phases of the child and getting judges to understand children that come before them in this way. Dr Pickering also spoke, saying that he agreed with David on the point of judicial continuity and the need for greater expertise and more family judges working full time. Dr Pickering then went on to say that Families Need Fathers would like to see more mediation too. John Baker also spoke and said that he felt more people needed to be taken out of the court system and making their own agreements because the process was long, expensive and induced a great deal of anxiety.

There were many more questions asked during the course of the evening, originating from fathers' organisations like Papa, whose founder Greg Downing was present, focusing on children being used as weapons by the other parent, to a father who had not been able to enjoy the kind of contact he hoped for with his son; as well as questions from individuals representing children's policies in law, who were concerned about mental health issues not being detected early on in cases, which caused severe problems further down the line. Some members of the audience felt that both having new legislation and amending the already existing Children Act were equally viable ways forward and that short training courses for judges working in family courts could not be considered effective training for the kind of work involved. One lady lawyer commented that she favoured the approach of the Children Act because it afforded flexibility and liked in particular that the paramountcy principle was treated as a priority in the legislation and that as a result she herself was not in favour of a presumption of shared parenting.

The panel members responded to each of these questions, picking up on the need to have highly trained judges who worked full time and the need to keep the welfare of the child in mind at all times. The panel's answers reflected a divergence in ideology but reassuringly, as some audience members noted, were in accord in relation to focusing on the child's best interests.

Further questions were asked and observations made. Baroness Deech spoke about the need to take into account the still existing differences between the roles of each parent and the paradox in law of the relocating parent, which she felt was biased against mothers. She also addressed the issue of the division of labour during the marriage, the need to bear in mind that some fathers do not maintain their children after divorce and that this issue needs to be addressed at the same time as any others. The sentiments were delivered passionately and incited a reaction from the floor.

Another question centred on the concern that there were no measures to address fathers who did not make time for contact. A lawyer, Shahrzad Atai, also asked about the possibility of having cultural experts in the court to deal with underlying issues such as blackmail where one partner may threaten to abduct the children if the other does not concede to the suggested contact made by the blackmailing parent. Following on from this question, Ian Rispin, the founder of Wikivorce, also observed that working on finer points of law was perhaps secondary to pragmatic solutions, such as having clear, concise parenting agreement structures and clear guidance on laws in relation to ancillary relief, laws which were themselves straightforward and accessible and which would reduce conflict. 

More impassioned observations were made by a father who told the panel that most research opposing shared parenting was usually carried out on a very small sample set of parents, most of whom –  if not all – were in the high conflict category whereas the research in favour of shared parenting was collected from considerably larger pools of families. He went on to ask the panel if they were aware of the division of opinion on shared parenting vis-a -vis Australia and America. Brian Hitchcock then went on to talk about CACFASS being viewed as the eyes and ears of the family courts but that there were no proper complaints procedures for complaining about things like CAFCASS reports and so there should be more accountability of the people who work in the system to better the outcomes for parents and contact.

As the evening progressed, the audience came to life, members clapped those guests who made points that resonated and more questions still were asked, with many waiting in the wings unable to share their thoughts with the panel and the other attendees as the meeting simply ran out of time. Despite the difference of opinion on having a legal presumption of shared parenting, the heartening reality was that the vast majority of those who came to the meeting wanted the same thing; to protect the best interests of children involved. And despite the disagreements on how to achieve that, there were very real signs of compromise and collaboration between the two worlds. 

The APPG would like to thank all the families, lawyers, charities, politicians and peers who attended the meeting and who made it fruitful. A special thank you must go to our panel, who had obviously taken the time to prepare powerful and compelling speeches and who even made the audience laugh and smile, despite the very serious and engaging nature of the evening's discussion.

Natasha Phillips
APPG on Family Law and the Court of Protection