Shared Parenting after Separation

Following our article in February on the issue of shared parenting after divorce or separation, we can confirm that the Government has now launched a consultation paper on the matter. In this paper, the Government proposes amending the law to explicitly recognise the importance of children having a relationship with both parents following separation, providing this is safe and appropriate.

As previously stated, decisions are made by family courts based upon the principle that the child's welfare is of paramount consideration. Although involvement of both parents is considered by the court within the 'welfare checklist', it is not explicitly recognised. The Government maintains that this has contributed to the notion that the law does not recognise the importance of both parents' role in a child's life and has subsequently led to the perceived bias towards one parent or another within the family courts. The Government is clear that the child's welfare will continue to remain the court's paramount consideration in making decisions. However, in addition to this will be the explicit recognition of the need for children to be involved with both parents following separation.

Behind the Government's consultation is the idea that children generally do better if both their parents are involved in their lives, regardless of whether the parents are together or separated. This does not necessarily equate to 50/50 shared care and will not, therefore, satisfy some parents. However, it does enshrine the rights of parents in law, which is something that has not been done before.

As part of the notion of shared parenting, the consultation also asks how to strengthen enforcement measures available to the courts to deal with breaches of court orders regarding care arrangements. This can be a major problem for parents who find themselves in a position in which the other parent disregards or deliberately disobeys a court order  that has been put in place to formalise care arrangements for the children. The existing sanctions available to the court involve a fine, imprisonment for contempt of court or an order to undertake unpaid work. The consultation considers extending these powers to include withholding passports or driving licences, or preventing parents from leaving their homes at certain times. The courts will continue to hold their most powerful order, in the form of changing residence so that the child lives with the other parent. The Government believes that these tougher measures will send a clear message to parents that decisions made by the courts must be complied with.
 
The consultation will close on 5 September 2012, with results expected no later than October 2012.

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