There has been a lot of media response recently to the Family Justice Review looking into the issue of shared parenting and the government’s response to that.  The Family Justice Review chaired by David Norgrove actually stated that they did not feel legislation would be helpful because of their analysis of similar legislation introduced in Australia in 2006 that required judicial officers to have due regard to ‘the benefit to the child of having a meaningful relationship’ with both parents.  Litigation greatly increases as a result.

Cotswold Family Law the Family Justice Review felt was that to introduce any sort of direction or one size fits all approach to the very delicate issue of deciding which parent has residence of children of divorce or separation would not be helpful.

The government however, has announced plans to introduce legislation ensuring children maintain an on-going relationship with both parents following divorce and separation.  Most of us involved on a day-to-day basis with the courts find this somewhat disingenuous because the courts always have due regard to the need for children to maintain relationships with both parents.  In fact it is the court, rather than the parents, who insist on this.  Quite often parents who are arguing in the court would like to believe that the children were better off with them and not with the other parent.

It has to be remembered of course that most parents do not litigate, although painful, they do manage to resolve what is to happen to the children who they are going to live with on separation relatively amicably.  It is approximately 1 in 10 of parents who choose to argue through the courts.

Again, contrary to popular understanding there is absolutely no assumption that the court would say that children should live with their mothers.  In society as a whole, however, the pattern tends to be that male partners are generally in full-time employment while the female partners work part-time and care for the children.  This is not universally the case but it is a general pattern, similarly when parties separate it is often the case that the woman continues to be largely responsible for the child care.  Increasingly though both parents have to work full-time and so when they separate, there is absolutely no assumption that the children stay with their mother.  If both parents are working, then both parents need to employ child care to enable them to both work and manage the children.  Any legislation that may or may not be introduced is really not going to change the situation that is already prevalent in the courts.

What perhaps does need to happen is more resources allocated to enable parents to parent well, to be encouraged to resolve issues of child care through negotiation rather than through the courts and to ensure that as far as possible, children do maintain a relationship with both parents by avoiding the court process altogether.  All court does is polarise each parent so that they become more estranged and less capable of having a good relationship with each other or their children.

The Family Justice Review panel gave the government clear recommendation that no new law should be introduced to give parents the right to substantially shared or equal time with their children.  The courts already recognise the importance for children of having a continued relationship with both parents.  Providing any form of formal legal right to parents is unnecessary and may lead to false expectations.  Also, above all, the court recognises that any arrangement should have the children’s best interest as its priority not giving parents rights but ensuring the priority of the children’s interests over and above any rights of their parents.

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