Child Law in Scotland is governed in the main by legislation which is now over 20 years old. As societal norms and family compositions evolve, the law must keep abreast of change. Accordingly, in late 2016 Holyrood’s Justice Committee announced that a wholesale review of how family law in Scotland operates may be required. In response to this announcement, calls for a legislative commitment to ‘shared parenting’ after separation or divorce have been heard from some quarters.
The status quo
As things currently stand, when parents separate and there are childcare arrangements to be made, parents are free to come to any agreement which works for them and their family. Legislation discourages parents from going to court unless necessary, but in cases where the parents cannot agree on what is best for their child, they can apply to the court to make an Order regulating childcare.
The overarching, and determinative, consideration for the court in coming to a decision is what is in the best interests of the child, which will usually depend on who is best able to provide for the child’s needs. The law does not consider that the mother or the father, or either parent in a same-sex relationship, has a better claim. With limited exceptions, both parents continue to share parental responsibilities and parental rights in respect of the child and are obliged to continue to consult each other on all matters relating to the child’s welfare and upbringing.
The law emphasises parental responsibilities towards their child, rather than their rights as parents, and encourages parents to maintain relationships and involvement with their child even if the child is not living with them.
Separation is a painful time for the parties involved, and communication can sometimes be difficult. However, if parents can try to work with each other rather than take a combative stance against the other, they are more likely to be able to come up with a solution which is best for their child together.
What is shared parenting?
‘Shared parenting’ is a somewhat nebulous concept in that it is often used interchangeably with other terms such as ‘shared care’, ‘equal parenting’ and ‘joint custody’, all of which have rather different meanings in practical terms. Sometimes ‘shared parenting’ is taken to mean a child-centred co-parenting approach. This is in essence what Scots law already encourages parents to aim for, by putting the child’s best interest first, encouraging the continuing involvement of both parents in the child’s life, and emphasising the shared parental responsibilities and rights which both parents retain.
Other times, organisations like Families Need Fathers use the term to denote the sharing of meaningful parenting time and responsibility, and state that while it is the quality of time spent with a child rather than quantity which matters, time is fundamental to the maintaining of a meaningful relationship and a 50/50 time split is to be aspired to.
This is arguably closer to a ‘shared care’ concept, where the child’s week is split, for example, three nights per week with one parent and four nights with the other, or spends alternate weeks with each parent. In many cases, parents can reach a shared care arrangement between them, sometimes with the assistance of specialist family lawyers, or mediators, or both. Where parents are flexible, can cooperate and communicate positively, and elect to have shared care, these arrangements can work well and should be actively encouraged by legal practitioners where they are in the best interests of the child.
The terms ‘shared care’ and ‘shared parenting’ are also attractive in the sense that they move away from the value-laden terms of ‘residence’ and ‘contact’ which are evocative and arguably denote a hierarchy of status on the respective parents.
Should the law become more parent-centred?
However, it is a step in the wrong direction to change the law by placing a legislative presumption in favour of shared parenting, or shared care, as a starting point for negotiations regarding the care of a child.
Families Need Fathers to stress that ‘both parents matter’. In many children’s lives, of course, this statement is undeniable. However, in making a case for a change to the law, it betrays their motive as being parent-centred rather than child-centred. Separation or divorce, while difficult for the parents, is a time of confusion, upset and upheaval for the child and their welfare should always be the paramount consideration when making arrangements for their life going forward, however, the presumption of shared parenting could have the opposite effect.
Amending the law in this way may lead to parents beginning negotiations in an entrenched position of what they see as their ‘equal rights’, or raising court battles to enshrine these rights in an Order, rather than focussing on what is right for their child and their particular circumstances. Such a move would only be to the detriment of the child in emotional and practical terms.
A further concern relates to couples who have separated due to domestic abuse, or where there is an imbalance in the parties’ respective dominance or control. Although the presumption of shared parenting could be rebutted by evidence of abuse, for instance, there is a danger for cases where parties do attempt to negotiate without going to court. As Baroness Butler-Sloss highlighted when a similar change to English family law was amended, “the stronger, more dominant parent may insist on an arrangement based on equality, or at least on a disproportion which is not appropriate for the welfare of the children”. The desire for ‘meaningful’ relationships should not be prioritised over the safety or welfare of children.
The experience in other countries for Shared Parenting
Concerns from other jurisdictions which have already implemented similar legislative changes also ought to be heeded. Leading law experts and practitioners in Australia have questioned the value of their shared parenting legislation, and research commissioned by the federal Attorney-General’s office found that shared care arrangements brought in by the legislation have not worked in the best interest of children in high-conflict families and were linked to child safety and protection issues.
In Denmark, research showed the default 50/50 shared custody arrangement had worse outcomes for children in high-conflict families and that the motives for applying for shared custody were not child-centred, but rather focused on fairness to parents. This led to the Danish parliament deciding that the default shared custody arrangement for children of divorced parents should be abolished.
A rebuttable presumption of shared parenting echoes the default position in Scots family law of fair, or equal, sharing in the net matrimonial property which sets the scene for parties negotiating from a middle ground for what they see as a fair financial deal for them. Children are not property which parents should view through a lens of right or entitlement. What is ‘fair’ to the parents should not be a factor: decision-making ought to focus on the best interests of the child rather than the expectations of parents. A legislative presumption in favour of shared parenting will shift the focus away from the needs, wishes and interests of the child, and instead towards the needs, wishes and interests of the parents.
Keeping our laws relevant to society
Nevertheless, it is a truth which must be acknowledged that families and parenting are changing. It is no longer always the case that mothers stay at home to care for the children while fathers go out to work and have little practical involvement in childcare. The law must keep up and recognise that in many cases, both parents do share the responsibility of childcare equally, or almost equally between them and that children benefit from having a meaningful relationship with both.
After separation, the adage of the ‘weekend dad’ is no longer appropriate in many cases. Shared care, when agreed voluntarily between co-operative parents, can be extremely beneficial to the child involved, as well as to the separated adults. However, there is a better approach to encouraging arrangements of this kind than vesting a legal right to it in parents.
Family solicitors should offer more support and options to separated parents when attempting to resolve childcare issues, to increase the take up of alternative modes of dispute resolution, such as mediation and collaboration.
By working together, supported by legal practitioners, and with their child’s best interests as the paramount consideration, parents can arrive at a shared care arrangement which works best for everyone involved, and shape their child’s welfare for the better.
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