The Argument for Shared Parenting Presumption in Law

Shared parenting – i.e. joint “physical custody” – would seem like the ideal solution to child arrangements on divorce. However, the world and the families it contains exist in far from ideal circumstances. After, all, if things were ideal to begin with all marriages would be perfect and divorce would not even form part of our lexicon.

So, how do law makers handle the question of child arrangements on divorce? Some campaigners think that the courts should begin with a presumption that that the parents will share the parenting.

Poll suggests people believe in shared parenting

According to a recent YouGov survey, 8 in 10 people agree that there should be a presumption in law that children will divide their time equally between their parents following separation or divorce.

It is easy to understand why; it is undoubtedly in the best interests of children to have meaningful relationships with both parents. And one would hope, in all instances that both parents would want to put the welfare of their children to the forefront and share the time spent with them.

However, there are a number of potential complications to the enactment of a shared parenting presumption in law that are difficult to overlook. These include the following:

  • The logistics of such arrangements may prove persistently problematic and the practical reality could differ greatly from the aspiration/agreement
  • Shared parenting may become a compromise unwanted by the parties involved
  • Shared parenting may be used by one party as a way to avoid financial responsibility
  • The arrangement could undermine the feeling of stability for the child
  • The child’s wishes may not be fully considered

Although the survey, which sought the views of around 2,000 adults in England and Wales and was commissioned by FNF Both Parents Matter Cymru, did not look at the above considerations, it did seek to exclude instances where there would be a proven risk to the child.

Hopes for debate on current injustices

The charity says it hopes the survey will inform debate and its publication has already led the Conservative MP Suella Braverman, the instigator behind 2017’s Family Justice Bill, to call for a closer examination of whether rebuttable shared parenting presumption should be brought into law.

The MP commented, “Every child has a right to a meaningful relationship with both parents but at present the law does not make this clear. In the worst cases, ‘parental involvement’ from divorce settlements can amount to little more than a birthday card, effectively airbrushing a non-resident parent from a child’s life.”

She further called for more do be done to address some of the “serious injustices inherent in England’s current divorce law” particularly in relation to how much contact a non-resident parent should have with their child.

Whatever the case, and whatever the practical application of any shared parenting presumption, it is surely useful to acknowledge that, generally speaking, children have two parents, they want a relationship with both parents, and both parents want a relationship with their children. Any model of divorce that takes account of all these factors, while also seeking the best possible arrangement for children, is surely a better model than one that places families in the midst of a feuding, victor-loser mentality.

The question of whether shared parenting should be built into UK family law is undoubtedly one that needs to be looked at, but with the current focus on justice Secretary David Gauke’s Divorce, Dissolution And Separation Bill, which seeks to remove the need for evidence in the proving of irretrievable breakdown, having been recently put forward to the House of Commons and a Ministry of Justice chaired panel currently undertaking a three month project to place a spotlight on child protection in family courts in cases of domestic abuse, one wonders if the fate of the majority of children in the majority of divorce cases will seem important or necessary enough to pursue by way of a shared parenting presumption.