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Family Law Blog

Comment on divorce & family law 

The great shared parenting illusion


It seems a slight change in the wording of the Children and Families Bill could have quite an impact on some couples going through divorce. That was the feeling that I took away from the Family Justice – Next Steps for Reform: Westminster Legal Policy Forum that I attended last week.

A big talking point among delegates was the removal of the “shared parenting” phrase that had gained so much publicity while this Bill has been crawling its way towards becoming law. The Bill had previously said that, when considering residence and contact issues relating to children on the breakdown of a marriage, there would be a presumption of shared parenting, eg that both mum and dad would play an active role in bringing up the children. This was seen as a significant “win” for dads who felt the system left them on the outside fighting for a fair hand in raising their children if they split from the mother.

However, this has now been watered down to a “presumption of parental involvement”. Doesn’t sound as convincing, does it? At best, it is going to cause a lot of (needless) confusion among separated or separating families.

In legal terms, this doesn’t really make too much difference and it is unlikely to bring dramatic changes to where we are now (which is part of the problem, I suppose). It is cosmetic really. However, with so much publicity around shared parenting, it is likely that the general public will be left thinking that shared parenting has landed, when in actual fact it never took to the air. This will be a particular hindrance to those who choose to represent themselves in court during divorce proceedings. These Litigants in Person (LIP) could well be walking into a court room ill-informed on this issue. So when they start trying to negotiate what they see as their rights, they may start talking about “rights” to shared parenting because they are unaware of the latest variation in wording. This could slow down cases, cost more in court fees and will not help the cases of any of the LIPs fighting, quite innocently, for something that does not exist. All because of “new rights” that were announced as part of a bill but then removed before it became law.

Why the backdown? Who really knows? It may have had something to do with the Australian experience of introducing the concept of shared parenting, which has not been a smooth one, but we’ll never really know. There was some clear concern at the forum that shared parenting could be interpreted by some as a right to have equal time with the children, leading to ill-founded cases being brought over the number of days, or even hours that the children spent with each parent, rather than focussing on what is in the children’s best interests.

But the legacy is an air of confusion, a theme which permeated discussions at the conference, where Baroness Deech and Lord Justice Ryder were among the legal heavyweights. As well as this tweaked wording which seems to consign shared parenting to the cutting room floor, there are the changes already made to legal aid which leave many families on the back foot. There was a palpable feeling from people actually involved in the law reforms that some families who need to rely on the Children and Family Bill are going to be worse off than they were before. It is a classic case of where there has been a well-intentioned attempt to help and simplify the law that relates to helping families, but what comes out the other end is something that has changed very little – and in some cases made it harder for people with cases taking longer than ever

Kate Butler
Family lawyer, Northamptonshire

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