EDGES MAGAZINE Issue 39

October 2004


  A legal presumption of shared parenting time should be the fundamental right of every fit, separated parent and child. The evidence proves that it would promote better outcomes for children, reduce conflict, save money, and avoid chronic misery for children and families. Tony Coe, President of Equal Parenting Council.

There is strong support throughout the UK for a legal presumption of shared parenting after parents separate. Supporters say that available parenting time should be divided between both fit parents on an equitable basis (not necessarily equal) – fair to all people concerned – that includes the children as well as the parents.

Most separating parents understand that it is vitally important to ensure that their children’s relationship with the other parent should be shielded from the effects of the termination of the relationship between the parents. However, a minority of parents work the legal system for all its worth to exclude the other parent from their children’s lives.

In the UK our seriously flawed family justice system unwittingly aids and abets these parents by failing to support the children’s relationship with the excluded parent. Our courts are needlessly creating one-parent families, when other jurisdictions (led by USA) have been moving quickly in the direction of shared parenting.

Shared parenting recognises that, whilst the relationship between the adult couple has ceased, the children should continue to have a ‘family life’ with both parents. Alternate weekend trips to the zoo and McDonalds do not remotely amount to a family life! Shared parenting means that both parents continue to be actively involved in their children’s upbringing – that is to say, in parenting their children.

The research in the USA shows beyond a shade of a doubt that, on every social measure, children of separated, fit parents do better when they continue to have substantial and continuing parenting - shared parenting – with both their parents. For example, they do better academically and are more likely to stay away from crime and drugs.

Those who oppose this concept usually do so on the grounds that issues of child custody (residence) and access (contact) should be decided only on the basis of ‘the best interests of the child, ignoring any consideration of parental rights. But when is it ever in the best interests of a child to lose one fit parent? Can it ever be justified to take a fit parent’s children away from him or her?

Opponents of a shared parenting presumption say that every case is different and individual judges should continue to be given unfettered discretion to decide the parenting arrangements. This is how we do it in the UK and the result is that over 40% of separated parents lose all contact with their children within 2 years. This is because judges are given no clear rules that they must apply. The law is vague – it basically says to the judge ‘Do whatever you think is in the best interests of every child!’

There is not even a presumption of any access, let alone one that parenting time should be shared. This in spite of the fact that Parliament intended that the Children Act 1989 should promote shared parenting. Why then are children and fit parents being needlessly parted?

The problem is this: no enabling legal machinery was put in place when the Children Act 1989 was introduced to ensure that shared parenting would be the automatic starting point immediately after parents separate. In other words, there is no legal presumption that parents should have reasonable (nor indeed any) child access arrangements after parting company with the other parent. This approach, which lacks commonsense, is at the heart of the widespread dissatisfaction with our current system for resolving parental disputes of this kind.

It is cruel, inhuman and plainly wrong to keep fit parents from their precious children (and vice versa) without a compelling, demonstrative reason. It is cruel and damaging to the children, as well as to the parents and grandparents. It is also a serious violation of the Human Rights of the child and the fit parent to enjoy a family life together; yet it is being perpetrated in our family courts every day throughout the country, where parents who can no longer live with their children (so called non resident parents) are rudely oppressed by judges who do not seem to understand the damage they are doing. We say that it is the absence of a legal presumption that is the root cause.

The Government’s position is that parents have no rights; only obligations. Surely, all fit parents must have the right to parent their children and that right must continue after separation and divorce? The burden should be on others (including the other parent) to establish on the basis of credible evidence why that right should be curtailed or restricted? A presumption would do no more than simply create a burden of proof. The existing de facto presumption, that the right of one parent should be terminated at the behest of the other, is perverse and wrong. It violates the fundamental right to be allowed to parent one’s own children.

It requires the courts to decide which parent (of two fit parents) to back and which to cast out. This is a wrong-headed approach and starts the process off on a basis, which is palpably contrary to the welfare needs of the children.

Currently in the UK, after divorce and separation, only one parent is given the right to continue parenting their children. That parent is the one with whom the child lives – usually (but not always) the mother. The number of mothers in this situation is increasing all the time.

Possession is nine points of the law. There can be no moral justification for this unequal treatment of two fit parents. The starting point must be that parental legal rights must be equal, just as marriage is an equal partnership. The apportionment of parenting time may need to be arrived at with the help of a mediator, but the authority of the court (for mediation to work) must always be looming in the background. The mediator must always be able to point out to both parents that the court expects (and will impose if necessary) a shared parenting plan. In practice our family courts, which are 20 years behind global Best Practice, treat the non-resident parent as no longer part of the family, who is only tolerated as long as the custodial parent will permit.

Unless the parent who wishes to oppose shared parenting can produce credible evidence of the other parent’s alleged unfitness, shared parenting should be the automatic starting point. The court should respect the children’s right to both parents by ordering at the first hearing a parenting plan that secures the children’s parenting time with both parents. This is so important that, if the judge does not do it, he should be required to explain his reasoning in his Judgement.

Children’s wishes should be taken into account, but never to the extent that they are allowed to make decisions that are plainly contrary to their welfare needs. For example it is not uncommon for children of separated parents to refuse to see one of their parents. This usually follows a period of limited contact at the insistence of the blocking parent so it’s not surprising that they might be feeling unloved and confused. This is the time when children need contact with the excluded parent, yet it is the very time when our legal system often starves them of this contact.

Our system’s current approach means that one parent can deny shared parenting simply be creating conflict. But rewarding conflict is not in the best interests of children who need both parents. Further the system’s propensity to exclude and oppress one parent itself promotes chronic conflict. The current ‘winner-takes-all’ approach encourages conflict. If both parents knew from the outset that shared parenting would be the presumption (unless one parent is unfit) there would be no point in fighting. Their legal representatives would advise them to settle because shared parenting would be what the court would normally order, as Parliament clearly intended.

We must not allow hostile parents to continue hurting their children, former partners and extended family in this way. Fortunately these ‘contact blocking parents’ represent only a relatively small percentage of all separated parents, but the damage they do is not small. It blights the lives of the children, parents and grandparents concerned. Dysfunction breed’s dysfunction breed’s dysfunction. Global research overwhelmingly demonstrates that on every social measure, children of separated parents do better when they have both parents in their lives. This has an obvious impact on crime and the overall well-being of society.

 

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