The Children Act which governs this area of law makes no distinction between mothers and fathers and the core principle is that the child's welfare is the paramount consideration when deciding where he or she should live and how time with each parent is spent. In practice, it is recognised that in most cases children do best when they have a loving relationship with both parents and more often than not families sort out arrangements themselves without having to involve the court. Family lawyers and mediators will encourage this. Where the court sadly does have to become involved the starting point will be that both parents should play a full part.
So why not change the actual legislation if this is what happens in practice? What the Family Justice Review said was that putting a presumption of shared parenting into the Act might undermine the over arching principle of the paramountcy of the welfare of the child. It might make it more difficult to deal with those complex and thankfully rare cases where for good reason it's not best for a child to have contact with one parent. Research in other countries where such a change has been made has suggested problems have been caused and that shared parenting has been interpreted as equal shared time, which isn't practical or good for children in many cases.
This finely balanced debate was the hook for BBC 5 Live's phone in on 6 January. Our very own Nigel Shepherd called in to the show to make the wider point that at the same time as preparing to comment on the FJR the Government is in the planning to cut legal aid for most family cases, meaning that some of the most vulnerable in society are going to be denied advice when they need it most. The clip is here and Nigel's summary contribution is about 15 minutes in. Recently published research from family law group Resolution suggests that thousands of children will lose contact with a parent as a result. Mediation and collaborative law could help a lot of people but are not the right option for everyone. In any event, good family lawyers will look at all the options to help parents decide how best to resolve any disagreements.
There is strong resistance from family justice professionals, the public and many MPs to these swingeing legal aid cuts. It can only be hoped that the Government will see the light and think again.
Nigel Shepherd