10 May 2013

Shared care of children post separation - the legal position

Shared care of children post separation - the legal position

Leah Bowman, Senior Solicitor, looks at the difference between “shared care” and “shared parenting”.

Leah Bowman, Senior Solicitor, looks at the difference between “shared care” and “shared parenting”.

When a couple decide to separate it is not a decision that is arrived at easily and this is made undoubtedly harder when future care arrangements for their children must be considered.  It is widely accepted that children will generally benefit from the continued involvement of both parents post separation.  Experience suggests that this is most often achieved by one parent having residence of the child and the other parent having contact with the child.  However, many parents feel that this situation is far from ideal, and often the non-resident parent feels aggrieved that they cannot spend an equal amount of time with their child, post separation, as the resident parent.  It has been suggested that the current legislation does not go far enough to ensure that both parents will continue to be actively involved in the future care arrangements for their children. 

The issue of “shared parenting” has received significant media attention in recent months with the airing of Tim Lovejoy’s Channel 4 Dispatches documentary ‘Sharing Mum and Dad’ and the announcement that, despite the conclusions contained in the Final Report from the English Family Justice Review Panel (http://www.justice.gov.uk/downloads/publications/moj/2011/family-justice-review-final-report.pdf), the UK Government still intends to attempt to introduce a presumption into legislation that “shared parenting” is in a child’s best interests post separation.  Any amendment to the legislation (The Children Act 1989) of this nature would have effect in England and Wales only, the Scottish Government presently has no similar intention to amend the Scottish legislation (The Children (Scotland) Act 1995) in this way.  One of the concerns voiced in respect of the proposed amendment by the UK Government is the perception of the term “shared parenting”.

"Shared Parenting"

Many parents are misled by the phrase “shared parenting” and assume, understandably, that it means “shared care”, or a right to spend equal time with their child as the other parent, post separation.  However, this is not the case.  “Shared parenting” does not mean that the child’s time will be effectively split equally between two households.  “Shared parenting” simply means that both parents will continue to be involved in the care and upbringing of the child moving forwards.  This is already widely accepted by the Scottish courts, however, the UK Government want to have this as a legal presumption in England and Wales, unless the child’s welfare dictates otherwise.  The UK Government has no intention to create a presumption that parents should have equal contact with or “shared care” of, their children as many parents may understand it to mean.  However, when considering this issue, the English Family Justice Review Panel concluded that there should not be a change to the present legislation as they believed that  ‘no legislation should be introduced that creates or risks creating the perception that there is a parental right to substantially shared or equal time for both parents.’ 

In addition to this, critics of the UK Government’s plans have commented that inserting this presumption into the current legislation (The Children Act 1989) seems to be more pre-occupied by the rights of the parents, rather than the rights of the child. 

The Current Position in Scotland – the Children (Scotland) Act 1995:

The current position in Scotland is detailed in the Children (Scotland) Act 1995.  This legislation does not offer a guarantee of equal contact/”shared care”, post separation or indeed any legal presumption that it is best for the child that both parents are actively involved in their upbringing post separation.  Instead, when making any orders relating to children, the Court must have the child’s welfare as their paramount consideration and only make an order if it is better for the child that they do so, than no order be made at all.  This is a child-centred approach.  Unless it is contrary to the child’s interests, the Courts generally accept that it is better for the child for both parents to be involved in their future care.  Equal contact/ “shared care” can be awarded, but firstly it must be established that it is in the child’s best interests for it to be.

Parental Agreements:

Even though the Scottish Government has no immediate plans to amend the current legislation, it is not to say that both parents cannot be actively involved in the future care arrangements for their children post separation.  Neither is it to say that parents cannot share the future care of their children equally.  Parents can benefit from the advice imparted by Solicitors when this is an option that they are considering.  The Scottish Executive have produced “The Parenting Agreement for Scotland” which can be found at (http://www.scotland.gov.uk/Topics/Justice/law/17867/10388). Any agreement made between parents, which seeks to provide for equal contact/ “shared care”, can be formalised by a Solicitor.  This can offer children and parents alike a sense of security, although it should be borne in mind such an Agreement cannot be set in stone and the overarching principle remains to be what is in the child’s best interests.  Research shows that where Solicitors are involved in family law issues concerning children, the majority are resolved either without a court process or without a contested hearing.  If parents are contemplating implementing an equal contact/ “shared care” Agreement, they should seek legal advice at the earliest opportunity.

Court Action:

Unfortunately, there are also situations in which parents are simply unable to co-operate post separation and in these circumstances, a presumption of “shared parenting”, which requires a high degree of parental co-operation, is unlikely to prove successful.  In this situation, such a presumption has the potential of inflaming matters, and risks harming a child’s welfare.  For parents struggling to reach an agreement in relation to future child care arrangements, including residence and contact, early legal advice may prove invaluable.  Ultimately, parents may require to seek orders from the court to ensure their continued involvement in the upbringing of their children.  The longer the situation remains unresolved, the more difficult matters can become. 

At Aberdein Considine, our Family Law Team would be happy to assist with child residence/contact issues or any other Family Law related matter.  Contact Wilma Waterston on 01224 337471 or wwaterston@acandco.com.

Leah Bowman, Senior Solicitor

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