Home Personal Family Law Shared Parenting and the Children and Families Bill

Shared Parenting and the Children and Families Bill

Alan Beith MP wrote to Mr Cameron to express his objections to shared parenting legislation:

http://www.guardian.co.uk/law/2012/jul/18/family-law-confusion-lib-dem

Mr Beith’s opposition to shared parenting legislation is, perhaps, best viewed in some historical and cultural context.

In the 19th century, British family law was such that, if the father so wished it, a separated mother was likely to lose all contact with her children.

Development of family law occurred very slowly indeed.

Some change came with the Child Custody Act of 1839 and the Matrimonial Causes Act of 1857, but it was not until 1925 that the welfare of the child finally became paramount.

At every stage, there were numerous ‘Mr Beiths’ resisting change and supporting vested interests.

Even today, in certain Middle Eastern cultures, separated mothers are treated despicably and are often denied access to their children. Here, too, there are ‘Mr Beiths’ resisting change.

Sadly, the injustices once experienced by British mothers are now being visited upon British fathers. The pendulum of parental rights has swung too far.

A father can be fully involved in the day-to-day care of his children. And yet, following separation, he can find himself completely excluded from their lives for many months or even years on end.

How can this possibly be permitted to occur?

Following separation, the family courts automatically seek to anoint one parent with the status of ‘Primary Carer’. This will usually be the parent who, prior to separation, undertook 51% or more of childcare duties. In most cases, this will be the mother.

The law then bestows upon that Primary Carer a grossly disproportionate degree of power and control over the children, vis-à-vis the ‘Non-Primary Carer’ (the father).

Of course, in most cases, separated parents arrive at a mutually agreed Shared Parenting arrangement. They are able to set to one side any feelings of animosity towards the other parent and instead focus on the needs and welfare of the children.

However, in a significant percentage of cases, the Primary Carer ‘uses the children as weapons’ – to coin a phrase adopted by Sir Nicholas Wall, the former President of the Family Division. The children are used as a means of hurting a former partner by restricting contact. Such abhorrent behaviour currently goes unpunished by the family courts, their rationale being that to punish the children’s Primary Carer is tantamount to punishing the children themselves. With no effective deterrent, such behaviour is set to continue. Our Government is looking at ways of introducing such deterrence.

Should family law continue with the “Single Parent / Primary Carer” model or move towards one of Shared Parenting?

There now exists a plethora of contemporary scientific evidence which demonstrates, beyond all reasonable doubt, the emotional, developmental and educational benefits for children of being permitted to remain in a close and meaningful relationship with both natural parents, post separation/divorce.

Indeed, fifteen such scientific reports were presented to Sir Nicholas Wall, the former President of the Family Division at the High Court in the case of Re D (Children) [2010] EWCA Civ 50.

Sir Nicholas reserved his judgment for three weeks in order to read this very extensive evidence. His Lordship concluded that family law – in the shape of Payne v Payne (2001) – relegated the harm done to children by irrevocably damaging their ‘meaningful’ relationship with the Non-Primary Carer. As a consequence, Payne v Payne (2001) was completely re-assessed by the Court of Appeal in 2011.

Mr Cameron – to whose Government the scientific evidence was also presented – understands the need for family law to develop in line with contemporary scientific evidence and with the realities of 21st Century parenting.

In contrast, Mr Beith appears to lag behind.

The root of the current problem lies in the fact that the judiciary has opted to interpret the Paramountcy Principle of the Children Act (1989) by using the “Single Parent / Primary Carer” paradigm.

Our Government seeks to rectify this judicial error by making it very explicit indeed to the judiciary that the on-going and ‘meaningful’ involvement of a good and loving father is vitally important in serving the paramount interests of a child.

In reality, there is no real conflict between the Paramountcy Principle and the Principle of a Presumption of Shared Parenting.

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