By Kirstie Law, Partner in Family. Article first published in The Lawyer on 14 June 2012.
'Shared parenting' consultation fails to address speed of court decisions in child access cases.
There has been much in the media about the consultation published on 13 June 2012 proposing to establish the notion of 'shared parenting'.
The concept is anything but new. Back in July 2010 a bill to provide for the making of 'Shared Parenting Orders' had its first reading in the House of Commons but failed to complete its passage through Parliament.
This time round there is still no explanation as to what is meant by 'shared parenting'. Contrary to several definitions, including Wikipedia’s, it does not mean “the care of the children is equal or substantially shared between biological parents”. Last year’s draft Family Justice Review which proposed “equality” was heavily criticised for fear it would lead to a generation of “suitcase kids”. It would be impossible to come up with an arrangement that could cover the many different family situations that courts deal with.
Closer examination of the consultation paper reveals 'shared parenting' actually means the right of both parents to see their children will be enshrined in law. Again nothing new. In most cases it is in the child’s best interests to have an ongoing relationship with both parents and the Children Act 1989 already makes the welfare of the child a priority. The concepts of custody and access were, contrary to many media reports and soap operas, abolished by the Children Act 1989.
Family practitioners know the real problem faced by the system is what to do with parents who will not comply with Orders. Again initial reading of the consultation suggests reform. New proposals that parents who do not comply will be banned from travelling abroad, driving or even leaving their homes in the evening. At first glance these may seem impressive but the reality is the court already can and do have a far greater power. They can change the residence of children. What could be worse than losing residence of your children due to failure to allow them to see the other parent and finding they will be living with the other parent as a result? The current reluctance to change residence if it will be too distressing for the children will apply to the new measures as well. The other parent will not want to be “blamed” for the children missing a holiday or evening activity.
In my experience the threat to change residence can persuade implacably hostile parents to comply with contact orders. The practical problem is that, because our court system is so slow, it takes many months before an order is made, breached and there is a further hearing to deal with the non-compliance. By this point it may be detrimental to the children to change residence because they have been so influenced as to become implacably hostile to the involuntarily absent parent.
What parents and children in these situations need and deserve is a system that enables cases to be dealt with quickly, for judges to take a hands on approach and properly manage cases where it is apparent there is going to be a problem enforcing orders. Experienced family practitioners and judges can tell which cases these will be. The current system does not enable them to be fast tracked or judicially managed. The current delay in some courts obtaining CAFCASS reports as to what is in the child’s best interests is 14-16 weeks and even then this time period can be extended if there is a shortage of staff or ill health (often happens). This is too long in the life of a young child and can be heart breaking for the parent who is being deprived of a relationship.