Before I pass you over to Kat, I want to say a huge thank you for all her work on our panel over the last couple of years. Kat’s wisdom and her tender approach to some of the difficult questions she has been asked have been very much appreciated.
We wish you all the very best in the months ahead Kat. Special times 
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…With some of the most experienced family judges suggesting shared residence should now be the rule rather than the exception, why do some parents, solicitors and, occasionally, Courts cling to patterns of contact and living arrangements that hark back to the days when dads were breadwinners and mums were homemakers?
Society expects that our men folk get stuck into day-to-day child rearing and for many working women the idea of becoming a stay at home mother ranges from unpalatable to economically unrealistic. Care arrangements that provide for a ‘main’ parent and a ‘satellite’ parent with no real sharing of parental responsibility are outmoded and, in my view, not in the best interests of children.
Having worked in Australia at the time family law was changed to include a presumption that children should spend equal time with both parents if possible, I saw first hand the disappointment and disillusionment when parents (often dads) realised that it was rarely practical or in the best interests of their children. This is the danger when we concentrate of time instead of parenting.
Shared residence does not mean equal time
Shared residence avoids the obsession with time spent with each parent and looks at how children can spend time in the care of each parent, taking into account practicalities, work commitments, schooling and the needs of the individual children involved. A tailor-made shared residence arrangement allows both parents homework time, interface with school and down-time at weekends. Some children can cope with split weeks, some children can’t, so arrangements need to be more creative.
Shared residence does not require proximity
You can be involved in your child’s life wherever you are in the world in the 21st century. If we stop calculating periods of time and handovers, location ceases to have an impact. Mum can be in Carlisle and dad can be in Portsmouth: children may be in one parent’s care in term times and in the other parent’s in holidays.
Shared residence does not require harmony between parents
But shared residence requires a level of consultation between parents particularly with regard to joint decision-making which can often result in better communication and can improve co-parenting.
In short, shared residence firmly restates existing and equal parental responsibility. A shared residence order ensures equal parenting in the eyes of children, the other parent, the law, as well as third parties such as schools, doctors etc. There is no ‘main’ parent. Each parent is the ‘main’ carer when it is their period of care.
So, if as a parent your solicitor suggests a shared residence order grab the opportunity with both hands, for the sake of your children.
Written by Kathryn McTaggart, divorce solicitor with Woolley & Co, Solicitors based near Cardiff in Wales. Kathryn works with many separating parents, priding herself on putting the children first in the advice that she gives. For more details visit www.family-lawfirm.co.uk.
Thank you for your well-considered article.
Over recent years, there has indeed been a significant paradigm shift in the dynamics of modern family life, in which the active participation of both parents is crucially important for the optimal development of children.
I agree wholeheartedly that shared parenting does not necessitate an exact 50/50 division of parenting time: this would be impractical in many cases. For example, one parent may work full-time and the other may be unemployed. The Government has made this point clear. However, what the Government has not done is to give us some idea of what a ‘shared care arrangement’ might look like in practice. Clearly, there needs to be frequent, regular and meaningful ‘contact’ with both parents. Alternate weekends, mid-week over-night stays, and an equitable division of school holidays ought to be a minimum. And it is for this reason that I disagree with the author of the above article with regards to matters of ‘location’. ‘Skype’ is no substitute for a loving hug! I speak from personal experience.
Despite having had an extensive ‘shared care arrangement’ in place for some two years after my divorce, I was, nevertheless, unable to prevent the overseas removal of my children due to the application by the judiciary of Payne v Payne (2001).
I now meet with my children infrequently and for much reduced periods, in the unnatural setting of an hotel room. I am no longer involved in their schooling (due to language) and the quality of our interaction has deteriorated significantly. I cannot cook for them, cannot tuck them in at night and read them a bedtime story. I have no holiday entitlement.
Since then, I campaigned vigorously on the issue of ‘child relocation’ and I was delighted to see the law amended last year with the ruling in Re K. In cases where a ‘shared care arrangement’ is in place – such as the one which my children and I had enjoyed – Payne v Payne is no longer to be applied. This will be of great benefit for many children in future.
My expectation is that, with the introduction of a presumption of shared parenting, Payne v Payne will no longer apply in any case. Upon separation/divorce, the starting point will be one in which both parents will be actively involved in the day-to-day lives of their children. Plainly, one cannot hope to enact any semblance of a ‘shared care arrangement’ if one’s children are living on the other side of the planet!
Best wishes
Bruno D’Itri
Thank you for your sensitively written and child focused comment.
Please do not take any part of the article as equating Skype with physically being with your children. Having personal and professional experience of how difficult is to be separated from a child by distance, I would not dream of suggesting that. However, in the past, location would have been used as a reason to have a primary carer and a ‘contact’ parent. Shared residence means that the Court recognises both parents equally, wherever they may be located. This is a positive even if it can be found in less than ideal circumstances.
Leave to remove applications are always painful and involve very high stakes. I sympathise hugely with you and your children. I share your positive view that the Court is now increasingly reluctant to grant permission, especially where there is a shared care arrangement/order.
The importance of children having a meaningful relationship with both parents post divorce/separation is already fully recognised by the judiciary and all those working within the family justice system so I am not sure what the new government proposals will achieve in practice. In my experience, alternate weekends, mid-week over-night stays, and an equitable division of school holidays are usually endorsed by the Court in shared residence orders. There will, however, always be some cases where this is not possible or appropriate.
I am sure that our focus should remain on the best interests of children and not be distracted by parental rights. In the past, leave to remove decisions, arguably the most difficult of private family law decisions, have particularly been criticised for placing too much emphasis on the welfare and entitlement of the parent seeking to relocate. In my opinion, the focus now remains firmly on what best serves children and we deflect that to what parents ‘ought’ or ‘should’ have at our peril.
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if both parents have 50/50 and its not working and courts cannot give either, can both sets of grandparents opt for joint residency, rather than just one, that seems a little unfair if only one set gets complete residency
who is entitled to get child benefit on shared residence orde when parents cant decide by themselves?
When parents separate or divorce, the court automatically seeks to anoint one parent (usually the mother) with the legal status of ‘primary carer/resident parent’. It then bestows upon that parent a grossly disproportionate degree of power and control over the children vis-à-vis the ‘secondary carer/non-resident parent’ (dad).
In many acrimonious cases an embittered resident parent uses this power to exclude the second parent from the lives of the children. The courts are reluctant to punish this abhorrent behaviour, their rationale being that to punish the primary carer is tantamount to punishing the children. With no deterrence, this behaviour is set to continue.
Quite naturally, an unjustly excluded parent will employ the very costly (£200 plus per hour) services of solicitors and barristers in a desperate effort to regain contact with his children. Truly obscene sums of money begin to flow from broken families into the coffers of the law firms. The Family Justice Industry feeds upon the love an excluded parent has for his children.
A presumption of Shared Parenting would permit a loving parent to be fully involved in the parenting of his children, post separation or divorce, without the need for costly and lengthy litigation. In Australia, for example, litigation reduced by circa 30% following the introduction of Shared Parenting legislation. Of course, in those relatively few cases where there is a serious and proven risk of harm, contact can and should be restricted.
Plainly, a similar reduction of circa 30% in British family court litigation would prove extremely damaging to the Family Justice Industry. It is little wonder, then, that the Law Society is vehemently against a presumption of Shared Parenting. Family lawyers are not saints; we should not naively assume that their leaders would place genuine justice for parents and children ahead of their desire to maintain their income stream.
The judiciary is no better. Sir Nicholas Wall – the former President of the Family Division – sought to blame parents for “using their children as weapons”, without accepting in the least that it is the System itself which facilitates, encourages and fails to deter such abhorrent behaviour.
The real scandal is that the Law Society and the judiciary appear to have succeeded in persuading our Government to significantly dilute its original Shared Parenting proposals. There is now a very serious risk that the unsatisfactory status quo is set to continue.
Shame on the Law Society.
Shame on the judiciary.
Shame on the Government.
Bruno D’Itri
History teaches us that powerful and wealthy “special interest groups” have direct and very influential access to Government officials and that they often get their own way, irrespective of what is actually ‘good’ or ‘just’ for society.
The raison d’etre of the Law Society is to serve the interests of the Legal Industry. Of this, there is no doubt.
The Law Society is perfectly aware of the extensive and compelling scientific evidence demonstrating, beyond all reasonable doubt, the significant benefits for children of remaining in meaningful contact with both parents post separation or divorce.
However, the Law Society is also very aware that Shared Parenting legislation is likely to be highly damaging to the interests of its members, as profitable litigation would significantly decrease.
The Law Society thus faces a real dilemma…
Should it stand up for the interests of children and support Shared Parenting legislation or, instead, should it stand up for the interests of its members and oppose Shared Parenting legislation?
It has opted firmly for the latter, and is using all of its sophistry and guile to try to convince our Government that Shared Parenting legislation will be harmful to child welfare.
Some Government officials, such as Alan Beith, have been taken in. Other Ministry of Justice officials have also been seduced and have stated recently that Shared Parenting legislation is NOT actually expected to alter outcomes in family justice cases. The sole purpose of any new legislation, they have said, is simply to try to dispel the widely-held (but, according to them, quite unjustified) “perception” of anti-father bias in the system! Apparently, hundreds of fathers are only imagining that they are not able to see their children!
We must do ALL we can to expose the shockingly immoral and self-serving behaviour of the Law Society in order to serve the genuine best interests of thousands of children.
Bruno D’Itri
The Children Act of 1989 required the judiciary to serve the paramount interests of the child.
Surely no one can disagree with this fundamental principle.
The problem is that our senior judiciary has opted to interpret this paramountcy principle by adopting out-of-date suppositions which hark back to the 1960′s and 70′s. It has done so because of its rigid adherence to the system of ‘legal precedent’.
Above all, a child needs the love and nurturing of its mother and the financial support of its father. Women are the emotionally weaker sex: if their wishes are thwarted by the court, their ability to parent their child will be adversely affected. A child can be raised quite satisfactorily without the nurturing of its father. A father may be permitted to share in the parenting of his child, but only if the mother is in agreement. If she is not in agreement, the father should not be involved in the parenting because this would upset the mother, and the resulting animosity would be harmful to the child. If a mother is found to have lodged false or exaggerated accusations of physical or emotional violence against a father, she should not be punished because this would harm her child.
If these are the suppositions written into decades of legal precedent and indelibly ingrained in the minds of the senior judiciary – such as Baroness Butler-Sloss, Lord Justice Thorpe and Sir Nicholas Wall – then it is quite obvious that these judges will opt to interpret the Paramountcy Principle of the CA1989 by adopting those suppositions.
A perfect example is Payne v Payne (2001). Butler-Sloss and Thorpe decided that the paramount interests of a child would best be served by ensuring that the child’s mother should not be upset by refusing her application to remove the child overseas. The unfortunate consequence – that the child would lose its meaningful relationship with its father – was not as important a factor as ensuring the happiness of the mother. In Re D (Children) [2010] EWCA Civ 50, Nicholas Wall refused to permit any challenge to the ideology of Payne v Payne, despite having being presented with a plethora of powerful scientific evidence in favour of shared parenting. Wall relegated the importance of that evidence.
Our senior judiciary has utterly misjudged the best interests of the child by remaining stubbornly wedded to an out-of-date ideology of parenthood.
The forthcoming amendment to the CA1989 – inserting a presumption of shared parenting – will hopefully rectify that serious judicial error.
Regards,
Bruno D’Itri
The ‘Children and Families Bill’ was debated in the House of Commons on 25 February 2013. A transcript of this Parliamentary debate can be found here:
http://www.publications.parliament.uk/pa/cm201213/cmhansrd/cm130225/debtext/130225-0002.htm#13022511000001
Tim Loughton spoke passionately and with much insight about the very real problems many non-resident parents (usually fathers) face in trying to maintain meaningful contact with their children. He was particularly scathing of resident parents who use the ‘system’ to exclude non-resident parents, and of the ‘system’ itself which fails to deter or prevent such abhorrent behaviour.
In contrast, Sir Alan Beith appeared completely ignorant of these realities. He maintained that no shared parenting amendment was necessary.
Beith suggested that the Paramountcy Principle would be undermined by the proposed shared parenting amendment.
Loughton made it very clear to Beith that the proposed amendment plainly specifies that the paramountcy principle remains ‘paramount’ and that contact would not be ordered by the court if there was a verifiable risk of harm to the child. This plain explanation did not seem to satisfy Beith.
Loughton recounted the fact that, of 3 million family breakdowns in one particular year, 1 million fathers lost all contact with their children. Plainly, this cannot be good for the welfare of those hapless children.
Loughton explained that the shared parenting amendment was designed to serve the Right of a child to be parented by both its parents.
In contract, Beith intimated that the amendment served the Rights of Parents rather than those of their children.
Beith suggested that the amendment would cause non-resident parents to expect 50% parenting time with their children.
Loughton made clear that the amendment was qualitative rather than quantitative in its design, and that it was plainly non-prescriptive regarding parenting time.
Beith stated that the popular press was touting the idea of 50/50 time, and that non-resident parents would therefore arrive at the same understanding.
Loughton stated that the misrepresentation of the amendment by the polular press would not prevent the Government from going ahead in the interests of child welfare.
As the new legislation is enacted, the press and the general public will need to be educated as to exactly what it entails and what parenting arrangements can be expected by separating parents.
Overall, I’d say Loughton won the argument.
Beith’s position remains very closely wedded to that of the Law Society.
It is no too difficult to speculate as to why the Law Society favours the current status quo and why it is against shared parenting legislation. Plainly, there are considerable vested financial interests in the continuation of non-resident parents going to court to re-establish or enforce contact with their children.
Precisely why Sir Alan Beith follows the Law Society’s stance so closely requires a little more fanciful speculation, perhaps concerning the methodology and efficacy of lobbying by special interest groups!
Regards
Bruno D’Itri