Proposed Changes to Parenting on Divorce

7th September 2012

A ministerial working group are to consider a change in the law concerning arrangements for children on the separation of their parents. The announced proposals include a presumption of shared care.

At present, where there is a dispute concerning the care of a child, the parents must first try and resolve the dispute by attending mediation. If that is not successful then one parent is likely to make an application to court for a judge to decide with whom the child shall live and what contact they will have with the non resident parent. There is no presumption in law that there should be shared parenting but the law recognises that children need to have reasonable safe contact with both parents and in the absence of such contact, they will suffer emotional harm.

Lucy Cohen, Partner at Willliscroft & Co Solicitors, states that the emotional need for children to have contact is important, however, it is only one factor that needs to be considered. To make a legal presumption of shared parenting is ignoring a number of other very important factors including any harm, or risk of harm, to the child in having contact with one parent. Lucy states that unfortunately there are many cases where children would put at risk of harm if there was a presumption of shared residence. For example, if there has been an issue of domestic violence in the parent’s relationship. In such cases, the risk of further incidents is heightened in the initial stages of the breakdown of a relationship and domestic violence can cause lasting emotional and sometimes physical damage to children.  Abusive parents are also known to use contact with children as a way to monitor the other parents lives, and to cause them further harm by attempting to turn the children against the residence parent or involving them in the parents own disputes. If there is a presumption of shared parenting, the law would give power to the abusive parent to continue that abuse.

On separation many families find themselves in entrenched conflict.  The children witness it and they feel divided loyalties to their parents. If one parent involves the children in the conflict then the other needs to be able to protect them from it by stopping contact, their ability to do this will be greatly hampered if there is a presumption of shared care, leaving children suffering harm.

8% of children reside with their mother’s according to the Office for National Statistics. The proposals under consideration appear to presume that this is due to the legal system. However, Lucy states that in her experience the courts are already making shared residence orders or granting residence orders to fathers but after full investigation into whether this is in the interests of the children. In addition the courts rarely refuse contact with one parent and when they do it is for good reason, where there is risk of harm to a child in contact taking place.

The victims of these proposals will no doubt be the children. There will be no thorough investigation into the welfare of the children and an assessment of what is the most appropriate arrangements for each individual child. The proposals need to be considered alongside the changes to Legal Aid, if there is a presumption of shared residence and, there is limited availability of legal aid, then even when shared care is inappropriate, many parents will not be able to afford a lawyer to help them do anything about it and many not have the confidence to do it on their own.