Plans to introduce a new legal presumption of “shared parenting” may lead to warring parents having an unrealistic expectation in “custody” battles and also seriously compromise child welfare. If a couple’s relationship breaks down it is of course important that their children continue to have a good relationship with both parents. However there is a risk that legislation to promote shared parenting will lead to a situation whereby this will be seen as the primary consideration, in assessing the welfare of the child, without considering the child’s other needs. Especially the need for protection from harm.
The current law dictates that the welfare of the child must always come first and be the court’s “paramount consideration”. It would surely not be in children’s interests for this important legal principle to be set aside. In our view, the current legislation is the right framework to secure children’s welfare. It already gives the Court a wide discretion to order shared parenting where this is appropriate, having placed the welfare of the child as the paramount consideration. There are, of course, many cases where shared parenting is appropriate and definitely meets the child’s needs. However shared parenting will not be appropriate in every single case and a legislative presumption in favour of this could lead to an increase in litigation.
And this at a time when Government is withdrawing legal funding for parents involved in disputes over contact and residence. The case against a change in this area of law is supported by a wealth of experience, expertise and evidence. Each case is different, fact-specific, and the final order must depend on the needs of the child. Proposals to promote cooperative parenting are admirable but should not be underpinned by legislation, which is always a poor way of eliciting a change in social mores.
The welfare of children would be better promoted by supporting mediation between parents, encouraging education through parenting information sessions and assisting parents to consider the needs of their children and to put the welfare of their children first.
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