Shared parenting presumption in law reform proposal

The government seeks to introduce a legal presumption of ‘shared parenting’ where relationships break down, under proposals outlined today. The plans to strengthen the law so children have an ongoing relationship with both parents if they separate are set out in the Ministry of Justice consulation.

It sets out four options to amend Section 1 of the Children Act 1989 to enshrine shared parenting in law, with provisions that will be included in the Children and Families Bill.

The government’s preferred option is to require the court to work on the presumption that a child’s welfare is likely to be furthered through safe involvement with both parents, unless the evidence shows this is unsafe or not in the child’s best interests.

The second option is to require the courts to have regard to the principle that a child’s welfare is likely to be furthered through involvement with both parents.

A third option would have the same effect as a presumption, by providing that the court’s starting point in making decisions about children’s care is that a child’s welfare is likely to be furthered through involvement with both parents.

In the fourth option the government suggests adding an additional factor to the welfare checklist so that regard is given to the child’s interest in retaining a relationship with both parents.

The proposals confirm plans set out in February in response to the Family Justice Review Panel’s report.

Ministers say that the change will encourage more parents to resolve disputes out of court and agree care arrangements that fully involve them both.

The government says the proposals make it clear that any change is ‘categorically’ not about equality of time that a child spends with each parent after separation. The consultation states explicitly that there is no intention that equal time or any notion of the ‘appropriate’ division of time should be the starting point of a court’s consideration.

Current legislation sets out the principle that a child’s welfare is always paramount in any family court decision about their future, but while the benefit of ongoing involvement with both parents is a factor in decisions, it is not explicitly stated in law. The government believes that this creates a perception that the law does not fully recognise both parents’ roles and that there is a bias towards one or other parent.

Children’s minister Tim Loughton said: ‘We need to clarify and restore public confidence that the courts fully recognise the joint nature of parenting. We want the law to be far more explicit about the importance of children having an ongoing relationship with both parents after separation, where that is safe and in the child’s best interests. Where parents are able and willing to play a positive role in their child’s care they should have the chance to do so.’

But he stressed: ‘This is categorically not about giving parents equal right to time with their children - it is about reinforcing society’s expectation that mothers and fathers should be jointly responsible for their children’s upbringing.’

The consultation also seeks to toughen sanctions to enforce breaches of court orders regarding care arrangements, extending existing punishments for contempt of court.

Justice minister Jonathan Djanogly said: ‘We want to send a strong message to any parent who ignores the arrangements ordered by a court. In the future these breaches will be brought back to court within weeks and before the same judge wherever possible. If any parent flouts a court order then effective enforcement measures will be available to the judge.’