Presumption of shared parenting – good or bad!19 Jun 2012
The Government has recently proposed that a presumption of shared parenting should be enshrined in legislation. The danger is that such a presumption can only be achieved by making cases about post separation child care more about parents’ rights than the child’s best interests.
This proposal must be seen against a backdrop of changes in the relative roles of the genders both within society and the family generally but also in the way the legal system deals with children cases. Fathers have in the past felt acutely disadvantaged, feeling that the legal system was not treating them equally to mothers. The labour Government attempted to neutralise the gender differences by developing the ‘welfare principle’ and the notion of the ‘best interests of the child’ being the paramount consideration of the court. This created a child focused shift.
There may be a case to answer that the court could have promoted the role of the father more forcefully and that fathers have been and continue to be marginalised, however recent case law has shown a keenness to redress that position – for instance the cases involving a transfer of residence from mother to father when other methods of ensuring a child has a balanced relationship with them both have failed. There is also the growing use of shared residence orders which put the parents on an equal footing.
The case law has developed a presumption already that children need a relationship with both their parents. However, a presumption of shared parenting could lead to a rights based approach which may in turn lead to a greater level of acrimony. A presumption of shared care should be put in place with caution, the child should remain at the centre of any decisions in relation to their care.
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