Government plans to introduce a legislative presumption of shared parenting could undermine child welfare and increase the volume of litigation, according to the Law Society.

Responding to a Ministry of Justice consultation which closed this week, the Society said the government’s proposal to promote co-operative parenting is ‘admirable’, but doing so through legislation is ‘seriously flawed’. The main risk is that shared parenting will come to be seen as a primary consideration in assessing a child’s welfare, at the expense of protection from harm, Chancery Lane warned.

The response said the welfare of children must always come first and that no legislation should be introduced that creates, or risks creating, the perception that there is an assumed right to substantially shared or equal time for both parents. Such a perception would lead to ‘heightened and unrealistic’ expectations among parents, making mediation more difficult.

The Society argued that legislative change was not needed, claiming a wide consensus that the current legislation provides the right framework for securing a child’s welfare, and that there is no evidence of judicial bias against fathers.

It said: ‘We believe the government understands perfectly well that the case against a legislative presumption is underpinned by experience, expertise and evidence which are absent from the case for legislative change. Nevertheless, political realities mean that this weight of evidence and opinion may be insufficient to head off legislation, as ministers wish to be seen to be responding to the concerns expressed by fathers’ and other groups.’

The Society added that the debate around shared parenting is a proxy for the more difficult debate around the ‘intractable problem’ of court orders.

Children’s minister Tim Loughton set out the government’s plans to amend the Children Act 1989 to strengthen the relationship between parents and children in a consultation published in June.