As published in the The Journal of the Law Society of Scotland
Scotland should consider following other jurisdictions by introducing a presumption of shared care, which on the research has numerous benefits for the children involved
The stated aim of the Scottish Government's review of the Children (Scotland) Act 1995 is to ensure that the interests of children and their need to form and maintain relationships with key adults in their lives are at the heart of any legislative changes.
As those of us regularly engaged in residence and contact disputes are aware, the existence of concepts of “residence” and “contact” can in themselves create a polarised situation in which one parent perceives themselves as being in the role of the “primary carer” or the “contact parent”, roles which inevitably carry judgments about respective levels of engagement in a child's upbringing despite the fact that parents share parental rights and responsibilities.
Issues and arguments
Shared care does not necessarily require a child to reside with each parent on a mathematically equal basis; rather, whether a proposed arrangement constitutes shared care will depend on factors such as the level of engagement each parent has in a child's day-to-day life, including schooling and healthcare.
The Scottish courts have been reluctant to endorse a presumption that it is in a child's best interests for parents to share the care of their children following separation. This can often cause consternation for separating parents who are aware that, in other European countries, they would automatically be entitled to spend more time with their children and to have a greater degree of input into their upbringing than they may find they have in Scotland. The “stay at home father” is a much more common phenomenon than it was back in 1995. The legislature has an opportunity to ensure that the evolution of child law in Scotland keeps pace with social shifts. Is a presumption of shared care appropriate?
We will all be aware of the typical arguments against shared care, which tend to go along the lines of “It isn't good for children to be between two homes”; and “Where there is a high degree of hostility, shared care cannot work.”
Shared care can involve a range of obvious challenges for children. They may have to deal with organisational issues moving between two houses. They can find it difficult to maintain consistent friendships. They are subject to different disciplinary regimes. They have no place which is “home” which they can state as their address. The key issue for practitioners to consider, though, is less about whether shared care involves challenges, but rather whether shared care is a better overall option than single parent care.
Maintaining a close degree of contact with each parent is associated with better academic, emotional, behavioural and other outcomes. The quality of the child's relationship with the non-resident parent will be a key consideration. That obviously depends in part on contact being sufficiently extensive to be meaningful. A logical extension of that argument is that shared care would automatically offer a broader basis on which relationships can develop. The research demonstrates that children whose parents divorce, benefit when both parents are actively engaged in their lives across a wider range of activities.
A common argument against shared care is that it involves risks to stability and consistency where education is concerned. The research studies indicate, however, that children in shared care have no less favourable educational outcomes than children in single parent families, and where there are differences, those differences point favourably in the direction of shared care. If both parents are invested in a child's wellbeing, including their educational wellbeing, the hope is that each parent will ensure that homework is done correctly and on time, that extracurricular activities are supported, and that friendships with peers are maintained outwith school. Although as a matter of law both parents are entitled to access information about their child's educational progress, there are a variety of factors which influence whether or not they do. If however both parents are starting from a shared position, they may be more likely to engage actively with their child's educational progress.
Studies demonstrate that the behavioural outcomes for children living in shared care arrangements are better than they are for children who are brought up primarily by a “primary carer” after separation. Factors such as antisocial behaviour, aggression, substance abuse and challenging behaviour are less prevalent in young adults who have been brought up in a shared care environment.
Studies looking at the physical health of children (including levels of stress related illnesses) report better outcomes for children in shared care compared with those in single parent care.
Child law practitioners often give particular care to cases involving infants, whose primary attachment may be to a main care giver. Professor Mackay concludes, however, that “there is no evidence to support postponing the introduction of regular and frequent involvement, including overnights of both parents with their babies and toddlers”. This is a startling conclusion, given the frequency with which the assumption that overnight contact between young children and the non-resident parent cannot be in a child's best interests tends to crop up in child welfare hearings.
The evidence base does not support the idea that conflict, including high levels of legal conflict, should necessarily rule out shared care from the arrangement that best serves children's interests. The quality of the parent-child relationship is a better predictor than conflict of outcomes for children, with the exception of course of extreme forms of conflict to which children could be exposed under a shared care regime.
There is a growing body of consistent evidence pointing to the conclusion that shared care works for children, delivering more favourable outcomes over a range of key indicators than those for children who do not benefit from living in shared care arrangements.
Parental separation can, but will not inevitably, result in adverse outcomes for children. As practitioners, if we can assist separating parents in recognising where disruption can be minimised, then we can contribute towards better outcomes for the children affected by separation. I would extend an invitation to practitioners to remain openminded about challenging assumptions around shared care, regardless of whether and how the legislation governing how we approach care arrangements for children may evolve.