The way estranged couples are expected to look after their children changes on 22nd October. Sarah Wyburn has the details

For years, the biggest arguments in divorces and separations have been over what happens to the children.

As a family law specialist, I’ve seen a lot of contentious, high-profile cases involving huge sums of money and complex legal issues, but the most fractious disputes always happen when there are children involved.

One of the main problems has always been that, while nobody disagrees that the best interests of the child should always come first, in a dispute over where the children are going to live, there is often the perception of “winning” and “losing” when a court order is made, with unhelpful American examples of “custody battles” setting the tone.

Recently, there has been a move to try and change the perception of disputes over child residence and contact, to move things away from the idea of a win/lose situation and more towards making sure the experience is the least traumatic and disruptive for the child.

The Children and Families Act 2014 changed the terminology used in these matters from “residence” and “contact” to what is seen as a less emotive definition: “child arrangements”.

The Act came into force on 22 April 2014, but its most controversial provision – section 11 – will be brought online on 22 October.  This section, which introduces a presumption of “continued parental involvement” into cases surrounding where a child should live, is the one the media have seized upon, and which you may have seen reported as a new law enforcing “shared parenting” or “shared custody”:

“A court is to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare… if that parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm… and unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm whatever the form of the involvement. “

Although there was nothing in this section talking directly about living arrangements, the media were quick to pick up on it.  Some of the reporting has been inaccurate, talking about a presumption of shared residence which would result in children spending 50% of their time with each parent.  This would obviously not be suitable in all or even most cases, and the reporting led to concerns from the likes of the NSPCC and the Shared Parenting Consortium as to whether this new “presumption” would trump the provisions of the Children Act in treating the child’s welfare as paramount.

In fact, as the House of Lords moved quickly to clarify, this section does not introduce a presumption of shared parenting at all.  An amended version of the text was quickly produced to clear up the misunderstanding, making it clear that “involvement” did not mean residence or custody, and that there was no presumption in favour of a child spending equal time with both parents:

“Involvement is any kind of direct or indirect involvement that promotes the welfare of the child; it shall not be taken to mean any particular division of a child’s time.”

The motivation behind these changes was never to try and push for children to live with both parents; this is rarely the most appropriate way forward and can cause significant disruption and upheaval in a child’s life, no matter how good the intentions of the parents.  Rather, the idea seems to be to change the perception of disputes over children, so that parents understand the law is working for the benefit of the child first and foremost, and that the only winning and losing when it comes to a children case is for the child themselves.

Eventually, the aim is for parents and their solicitors to come to workable, realistic agreements for residence and contact between themselves, avoiding the need for a high-pressure court hearing, with the objective of making sure that the court’s time is available as a last resort for those cases where no agreement is possible and litigation is unavoidable.

The well-known provisions of the Children Act and its “welfare checklist” for deciding living arrangements for children still applies – a child’s needs and wishes, taking into account their individual unique circumstances and characteristics, will continue to be paramount.  All the new section does is add a new factor, the involvement of both parents, into the checklist.

It absolutely does not introduce a presumption of equal time with both parents, nor does it mean separating parents are necessarily entitled to any more contact or involvement than they were before.

The Shared Parenting Consortium, who initially raised concerns based on the draft legislation following inaccurate media reports, have given their backing to the final version of the new law, praising its “focus on determining the needs and best interests of each individual child, rather than focusing on the expectations of parents”.

The new law – the whole Act, not just this section – should help to clarify what each parent’s rights and responsibilities are in each case, with this being set out in specific detail in any court order (regardless of whether this came about through a court battle or whether it was agreed between the parents beforehand), making sure both parents understand where the children are going to live and how and where they are to spend time together.

Although the changes are not as drastic as initially reported, in that they do not force the courts to impose or even support equal contact or joint residence, I believe any move to draw some of the hostility and acrimony from disputes between parents is to be applauded, and I hope the new law will be successful in its aims.

Sarah Wyburn is an owner-director of Wendy Hopkins Family Law Practice, Wales’ first and largest specialist family law firm.

Published: 21/10/14