The law

Currently the  Children and Families Act 2014 states:-

11Welfare of the child: parental involvement

(1)Section 1 of the Children Act 1989 (welfare of the child) is amended as follows.

(2)After subsection (2) insert—

“(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.

(2B)In subsection (2A) “involvement” means involvement of some kind, either direct or indirect, but not any particular division of a child’s time.”

This gives no or little protection to the child’s right to have an equal relationship with both their parents. Originally, the wording would have been more explicit but the bill was watered down due to the intervention of:-

  • Several pressure groups who stated an opposition to the presumption of shared parenting time.
  • The Norgrove report which erroneously reported that similar legislation had led to an increase in cases going to court in Australia. This was later demonstrated to be false by Prof. Patrick Parkinson in his submission to parliament after the report was published. (see below)
  • The intervention of Baroness Butler-Sloss in the third reading in the House of Lords who insisted on the insertion of 2b – thus rendering any changes which would be a step towards a presumption of shared parenting meaningless

Outside the arena of statute, however, there have been movements toward shared care in the UK:-

Cafcass (Children and Families Court Advisory Service) Good Practice Notes (Contact) Point 9 states ‘‘ In private law cases without significant parenting concerns, and where parents cannot agree, the arrangements for the child should be those that cause least disruption to her or his daily life and routines, and which maximise the involvement of both parents in her/his care.’ https://www.cafcass.gov.uk/about-cafcass/policies/ Cafcass prepare reports for the court when parents cannot agree on child arrangements post separation and their recommendations are rarely deviated from by the courts.

Case Law. Precedent is important in English Law. In 2006, Lord Justice Thorpe in setting out the parameters of where shared care is appropriate stated in paragraph 21 of his judgement on Re C (A child) Civ 235 EWCA

  • This is a child with a strong attachment to both parents who was happy and confident in both homes.
  • There is a real proximity between the two homes.
  • There is a real proximity of the homes and especially the father’s home to L’s school.
  • L has a real familiarity with both homes and a sense of belonging in each.
  • L has a clearly expressed perception that he has two homes.
  • There is a relatively fluid passage for L between the two homes.
  • There is a relatively fluid passage of L to and from school from each home.
  • There is some post-separation history of L’s care being shared between his parents.

In the next paragraph, he states ‘Those circumstances in their cumulative effect make this, in my judgment, a classic case for a shared residence order. Indeed, if this case is not appropriate for such order, what case is?’

It is clear, then that statute law is lagging behind both case law and the stance taken by the organisation which is tasked to advise the court on the optimal child arrangement orders for the child’s best interests. We feel this needs to be rectified.

Sadly, this is so little known that the perception in the public remains that the standard parenting model post separation is at best ‘every other weekend and half the holidays with dad, rest of the time with mum.’ As we will see in the next section this is not conducive to the best interests of the child – or indeed of the parents.

What then of the rest of the world?

Sweden: Children and Parents Code Ch 6 Sec. 3 ‘If a decree of divorce is granted between the parents, both parents shall continue to have custody of the child… the court shall remind them in the decree that joint custody still applies.’

Since the 1998 law reform, the court may order joint custody of a child against the wish of one of the parents but not if both parents object to it, Chapter 6 Sec. 5 Swedish Children and Parents Code. When deciding the suitable custody position, the court shall regard the best interests of the child. In its judgment NJA 1999 p. 451 the Swedish Supreme Court stated that the present legislation presupposes that joint custody is, as a rule, in the best interests of the child.

Kentucky House Bill 528 passed on April 26 2018 creates a rebuttal  presumption that ‘joint custody and equally shared parenting time is in the best interest of the child’ see https://legiscan.com/KY/bill/HB528/2018 for the full text. This should be the ‘Holy Grail’ for our movement – a copy and paste onto a new UK family justice bill would be ideal!

Similar legislation has been enacted in other European countries such as  Belguim (2006) Here the law states that upon the request of one of the parents the court must examine the possibility of ordering an “equally divided alternating residence”

Courts start from the premise of an enforceable presumption for “equally divided alternating residence and care” If one of the parents opposes this, the onus of showing that this is not in the ‘best interests of the child’ falls to that parent.

The EU Charter of Fundamental Rights (“CFR”) says at 24 (3):
“Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.”
A child’s right to direct contact exists unless and until “that is contrary to the child’s interests”:
a) “contrary to” requires that direct contact must be detrimental to the child’s interests (as opposed to any need for direct contact to be positively beneficial in order to be allowed);
b) “the child’s interests” requires a holistic view of the situation of the child including the harm done by prohibiting direct contact;
c) “that” is the contact itself, not extraneous considerations surrounding contact;
d) “that is” is a statement of fact (rather than, say “that might be”) and is in the present tense, so that prior situations are relevant only to the extent that they inform the present situation

This remains law at least until the end of the 2020 Brexit transition period.

An important footnote is that the UN Convention on the Rights of the Child states that children have the right to maintain direct contact and a meaningful relationship with both parents unless it is not in their best interests.

The Norgrove falsehood.

One of the arguments put forward by those opposed to a rebuttable presumption is that it will increase the amount of cases going to court. Litigation between parents in an adversarial process is obviously counter to the best interests of the child as separated parents need to concentrate on working together to support their children rather than on fighting each other in the courts.

However, Professor Patrick Parkinson in his written evidence to the Pre-legislative scrutiny of the Children and Families Bill in 2012 stated that the 2006 law categorically did Not have the effect of increasing litigation. In fact as experiences is legislatures which have recently adopted a rebuttal presumption of shared parenting time such as Kentucky (2018) show, it has actually reduced the number of cases going to court.

Furthermore, as we have seen Sweden has had a legal and societal acceptance of the concept of shared parenting time for nearly a generation. According to a 2017  Swedish Government Official Report. (2017). Statens offentliga utredningar [See the child!] the number of cases going to court is around 9%.

However, in a Keynote address given to the Resolution Conference in April 2019, Sir Andrew MacFarlane, the President of the Family Division, noted that a comparable figure in the UK is 38%. This was based on work done by Teresa Williams, the Director of Strategy at CAFCASS. This means that it is over for times more likely for separating parents to go to cot over child arrangement orders in a legislature that has a presumption of shared living time than one which doesn’t.

The Butler-Sloss intervention.

Baroness Butler Sloss argued that:-

‘The groups of parents whom I worry about in relation to Clause 11 are those who try to settle the arrangements for the children without going to court.  In the absence of lawyers to advise either side, the stronger, more dominant parent may insist on an arrangement based on equality, or at least on disproportion which is not appropriate for the welfare of the children. ‘

The problem is as the law stands there is an unwritten assumption that children live with one parent and have infrequent contact with the other. The ‘dominant  parent’ is always the one with the physical possession of the children. Children are forced therefore, into these arrangements where one parent is reduced to a secondary role. As we will see in the section on science, this is very damaging for the child and certainly not in their interests

It is right for organisations such as the Law Society to argue that we must never let ‘parental entitlement’ get in the way of the child’s best interests.

However, as the law stands, we have a de facto notion of ‘parental entitlement.’ When there is no court order,  the entitlement of the ‘resident parent’ to dictate how much time the ‘non-resident’ parent should have with the child means that the best interests of the child are largely forgotten

Remember, that a rebuttal presumption of shared living arrangements for children of separated parents does NOT mean that courts have to order this no more than a presumption of innocence forces a criminal court to rule that everyone who comes before it is ‘not-guilty’ regardless of the evidence against them. It is just saying that having this as a useful starting point would be in the best interests of the child unless  it could be shown otherwise.

Standing temporary orders (STOs)

One of the key issues is the delay in which someone who finds themselves living apart from their children can go to court to secure contact.

One solution which is being practiced in some states of the US such as Florida,  would be for the court to issue a  Standing Temporary Order. This has been explored recently as an option by Sir Andrew MacFarlane in his tour of circuit judges.

The way we propose  it could work is if  the parent who found themselves living apart from their child to serve an order to the other parent online which would be binding after a period of time, say 2 weeks.  The standing temporary order should be sufficiently flexible to provide a schedule of care across a spectrum, from the familiar ‘every other weekend and half the holidays’ to a full 50/50 division.

During this time the other parent would be prohibited from moving the child or children more than 10 miles away from  the parent who had made the order.

The other parent could either:-

  • Accept the order and agree to it before it came into force.
  • Initiate mediation to negotiate on the contents of the order.
  • Apply to court for a counter order (including a child protection order) to explain why the order issued by the non-resident parent was not in the best interests of the child.
  • Make a claim of domestic abuse which would suspend the order until that claim had been tested in a fact finding hearing.

Emergency Protection Orders would still stand to protect the child from an abusive parent.

However, the standing temporary order would unambiguously ‘stand’ unless or until varied (changed) by a court.

The sum paid by the non-resident parent who made the order would be similar to the sum of a C100 application currently made to take the other parent to court over child arrangement orders  IE £215

We believe that this would save the judiciary a huge amount per year …

Pre-nups

Since Radmacher and Granatino (2010) there has been more acceptance of pre-nups being used for settling financial disputes post-divorce. There is an argument to say that this could be extended to child arrangements in the event that the couple have children and subsequently separate. If a couple enter into an understanding that they will both be involved equally with the care of any child of the marriage in the event of divorce, either parent reneging on that agreement would have to give clear child-centered reasons why they were doing so.