I first became interested in this topic whilst considering a tricky residence dispute. I had a male client who was the father of a six-month-old baby boy. My client's co-habiting relationship had come to a rather fiery end. His priority was to secure shared care of his son. He looked utterly bamboozled by and crestfallen at the suggestion that perhaps an infant would be deemed by the court to be better off in the care of his mother.
Over the last few years, I have sensed a shift – perhaps there has been a cultural social shift as well as a legal one. Certainly the media has focused a bit more on the role of "stay at home dads" with paternity leave being more commonly taken up since being expanded in April 2015.
Jo Swinson, the equalities minister at the time, was quoted as saying that she wanted to "change the culture of the workplace to prevent the conflict between people's jobs and family life; making it just as normal for fathers to take on care and responsibilities as mothers". There was a real sense of an attempt being made to address some of the cultural barriers in workplaces.
This is all very well and good – but how has this cultural shift affected the legal landscape, if at all? As recently as 2010, family law sheriffs would be heard espousing views which assumed that the role of a mother was somehow more protected, more primary, particularly where very young children were concerned.
I took a look at a study by a man by the name of Richard Collier, professor of law at Newcastle University, called "fragmenting fatherhood – a socio-legal study". The study was published in the early 1990s before the introduction of the Children (Scotland) Act 1995.
Richard Collier argues that the law is symbolic; if we look at how the law has changed and how it is debated, we can tell a lot about changes in attitudes towards fatherhood. Speaking more recently, he suggests that the past few years have seen a revolution in expectations and attitudes, in a man's rights and responsibilities towards his children. The law is perhaps struggling to make sense of a world order in which conventional marriage is no longer the defining act. Society, and as part of that the law, is not quite sure what to make of male parents.
He describes the legal aspect of family separation as "the legal arena where battles take place". If the legal arena is a battleground, how realistic is it to assume that the notion of shared parenting can really take root?
The key idea enshrined in the 1995 Act is that the welfare of the child is paramount, rather than the rights of the parents. I suggest that there is a move towards equalising parents. In the 1950s fathers followed the traditional bread winner model. By the 1970s, cracks were beginning to appear in that model. Interestingly, and to my surprise, the group Families Need Fathers was actually formed back in 1974. By the 1980s and 1990s real changes were occurring. The reality from my own practice in family and child law is that both men and women find it difficult to balance work and family life. There are economic and emotional struggles for both parents.
Parental Rights and Responsibilities
Let's start with the basics. Sections 1 and 2 of the Children (Scotland) Act 1995 set out parental responsibilities and parental rights. These are well known, but sometimes it is helpful to go back to the start.
The legislation starts with defining parental responsibilities, a parent has in relation to his or her child the responsibility to safeguard and promote the child's health, development and welfare; to provide in a manner appropriate with the stage of development of the child direction and guidance; if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis; and to act as a child's legal representative.
Before the passing of the 1995 Act, statute law was worded in terms of parental rights. It has long been understood though that "parental rights exist for the benefit of the child and they are justified only insofar as they enable the parent to perform his duties towards the child". There are still parental rights which are recognised by the law, but the change in terminology from rights alone to both responsibilities and rights is designed to remove the common misunderstanding, which was given credence by the terms of the earlier 1986 Act, that parents have rights in, rather than duties and power towards, their children.
Section 2 of the Children (Scotland) Act 1995 sets out the rights which a parent has to enable him or her to fulfil their parental responsibilities in relation to the child. A parent has the right (a) to have the child live with him or otherwise to regulate the child's residence, (b) to control, direct or guide in a manner appropriate to the stage of development of the child, the child's upbringing; if the child is not living with him to maintain personal relations and direct contact with the child on a regular basis and to act as the child's legal representative.
Where two or more persons have a parental right in relation to a child each of them may exercise that right without the consent of the other or as the case may be of any of the others, unless any decree or deed conferring the right or regulating its exercise otherwise provides. Section 2 then goes on to specify certain provisions in relation to removal of a child.
Again we see the aim of the present provision is to put parental rights on a statutory basis, to declare that they exist only for the purpose of enabling the parent to fulfil his or her parental responsibilities, and to set out as clearly as possible the content of these rights. An important point to note is that the exercise of any particular parental right is valid only insofar as it is directed towards fulfilment of one or more of the parental responsibilities. So, arguably, the word 'right' in this context is misleading because the interest recognised is not a right in any normal sense of the word. So called parental rights are really more in the nature of powers or capabilities – the ability to act in ways that the law will recognise and give effect to.
Exercising rights and responsibilities – shared care?
The person exercising one of the powers recognised by section 2 can do so on their own without consulting any other person with the same powers. It follows, then, that in the case of disagreement the advantage is given to the person who takes the initiative. Whilst section 61 imposes an obligation on any person exercising the parental responsibility or right to have regard to the views of any other person with parental responsibilities and rights, the reality is that the parent who has day-to-day "care and control" of the child sometimes has the ability to have the casting vote. It is against this background that I think it can be hard for fathers to assert themselves when it comes to caring responsibilities. In my view, it is still relatively unusual for courts to take the view that separated parents should automatically be working towards shared care. Other European countries do adopt that approach – in France I understand that the default position or understanding is that shared care should be the norm unless there are very good child welfare based reasons as to why that type of regime should not be put in place.
There is little recent authority from the Scottish Courts in which the subject of shared care is specifically discussed. I would, however, like to take you back to the client I mentioned at the outset of this article. Immediately after separation, the usual arguments were put forward on behalf of the child's mother, to the effect that the child was a baby, he was too little to be away from her, and the fact that dad had played a key role in providing the day-to-day care of the child while they were together was really irrelevant now. My client insisting on sticking to his guns and, at a joint meeting, a reasonable level of residential contact was agreed and was gradually built up within a relatively short timeframe. The parties operate what could really be called a shared care arrangement, in terms of which the child stays with his dad on alternate weekends, is looked after by his dad Monday to Wednesday, outwith school hours, and stays overnight with him on three, sometimes four, nights per week.
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These are important and significant issues. The question of whether the Scottish legal system has kept pace with cultural and societal shifts is debatable. Family lawyers can contribute to shifts in the legal landscape. In navigating this complex area it is important to have the support of a solicitor who really appreciates your standpoint and who is open to creative solutions.