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Shared parenting under spotlight

Dr Maebh Harding

Dr Maebh Harding

Researchers from the University of Portsmouth Business School have won funding to examine shared parenting and contact orders for children whose parents separate.

The research comes in the wake of fathers’ rights groups campaigning for more time with their children after divorce, and a mooted change in the law in favour of shared parenting becoming the norm.

Dr Maebh Harding and Dr Annika Newnham, of the School of Law, hope to help inform any change in government policy by examining how courts promote shared parenting in disputes between separated parents.

Dr Harding said: “Many assertions are currently made about what the courts are or aren’t doing, but it is vital that the coming changes to the Family Justice System are based on a clear understanding of the courts’ current work.”

The project won £106,000 funding from the Nuffield Foundation; the first grant won by the School of Law from the Foundation, whose research frequently informs government policy.

Drs Harding and Newnham will examine the data from 210 county court cases over a six-month period from five courts in England and Wales to see if there are any patterns of residence and contact orders. They will look at the relationship between the formal labels given to court orders and the actual allocation of children’s time between parents.

They will also interview stakeholders, including judges, barristers, solicitors and social workers, on their perceptions of how those orders are applied.

The researchers expect to report their findings in 2014.

Dr Harding said: “There is a shortage of empirical research in this area and the mooted presumption of shared parenting means parents rather than children are the focus of the proposed change in the law.

“There are also questions about what shared parenting means – courts, parents and politicians might mean entirely different things by the term ‘shared’.

“Under the Children Act 1989 the courts must look for the solution that is in that child’s best interests, and because every child and every family is different you can’t presume that one size will fit all.”

The Family Justice Review has cautioned the government against drifting towards shared parenting as a default position without research on what the courts already do to make shared parenting possible using the current legislative framework.

Dr Harding said: “People have very firm views on families and what should happen based on their own family experience, but those experiences reflect just a single family and do not necessarily apply to the thousands of families who go through divorce and custody battles every year.

“We are open minded. We simply don’t know what we will find, but we do think government policy should be informed by research  .”

Under the Children Act 1989 children’s best interests are paramount, but the test is flexible to allow for differences in different families. In 1989 shared residence was highly unusual and though it is growing in popularity it has no firm definition. It does mean alternating between two family homes but the amount of time spent at each is not necessarily equal.

11 total comments on this postSubmit yours
  1. An interesting and valuable area of research. I have had first hand experience at the what I perceive as a failure by the courts to ensure a child’s best interests are catered for. Myself and my husband have fought for 10 years for a more consistent, fair and stable upbringing for his daughter, yet the mother always takes preference and can dictate exactly what she wants. I really hope the emphasis is on FAMILY in this review.

  2. When parents separate or divorce, the court automatically seeks to anoint one parent (usually the mother) with the legal status of ‘primary carer/resident parent’. It then bestows upon that parent a grossly disproportionate degree of power and control over the children vis-à-vis the ‘secondary carer/non-resident parent’ (dad).
    In many acrimonious cases an embittered resident parent uses this power to exclude the second parent from the lives of the children. The courts are reluctant to punish this abhorrent behaviour, their rationale being that to punish the primary carer is tantamount to punishing the children. With no deterrence, this behaviour is set to continue.

    Quite naturally, an unjustly excluded parent will employ the very costly (£200 plus per hour) services of solicitors and barristers in a desperate effort to regain contact with his children. Truly obscene sums of money begin to flow from broken families into the coffers of the law firms. The Family Justice Industry feeds upon the love an excluded parent has for his children.

    A presumption of Shared Parenting would permit a loving parent to be fully involved in the parenting of his children, post separation or divorce, without the need for costly and lengthy litigation. In Australia, for example, litigation reduced by circa 30% following the introduction of Shared Parenting legislation. Of course, in those relatively few cases where there is a serious and proven risk of harm, contact can and should be restricted.

    Plainly, a similar reduction of circa 30% in British family court litigation would prove extremely damaging to the Family Justice Industry. It is little wonder, then, that the Law Society is vehemently against a presumption of Shared Parenting. Family lawyers are not saints; we should not naively assume that their leaders would place genuine justice for parents and children ahead of their desire to maintain their income stream.

    The judiciary is no better. Sir Nicholas Wall – the former President of the Family Division – sought to blame parents for “using their children as weapons”, without accepting in the least that it is the System itself which facilitates, encourages and fails to deter such abhorrent behaviour.

    The real scandal is that the Law Society and the judiciary appear to have succeeded in persuading our Government to significantly dilute its original Shared Parenting proposals. There is now a very serious risk that the unsatisfactory status quo is set to continue.

    Shame on the Law Society.
    Shame on the judiciary.
    Shame on the Government.

    Bruno D’Itri

  3. Thanks for your comments. By looking at a neutral selection of cases we hope to be able to identify how often shared parenting is found to be in the child’s best interests under the current law. By providing a detailed examination of cases in which shared parenting is found to be in the child’s best interests and the cases in which it is found not to be suitable, we will inform the debate about legal reform to promote shared parenting. We hope that the work will help to ensure that the courts can come to a good resolution for the children involved in these difficult and divisive cases.

  4. Retired President of the Family Division, Baroness Butler-Sloss has recently expressed her strong objections to Shared Parenting legislation:

    http://www.express.co.uk/posts/view/370559/No-50-50-sharing-of-children-in-new-divorce-law-says-top-judge

    There are three major flaws in the views of the Baroness.

    Firstly, she makes the erroneous and very misleading presumption that those calling for Shared Parenting legislation want a rigid 50/50 split of parenting time.

    Most reasonable voices who have campaigned for Shared Parenting (such as Families Need Fathers and The Custody Minefield) have acknowledged for years that a rigid 50/50 split of parenting time would be impractical in many cases.

    Instead, they have called for the significant and meaningful involvement of both parents, in order that the child may benefit from being properly parented by both its parents. Theirs has always been a qualitative approach.

    Of course, in order for a child to have a significant and meaningful relationship with both its parents, it will need to spend some minimum quantum of time with both parents, but this need NOT be 50%.

    Many who are vehemently against Shared Parenting legislation are finding it extremely difficult to counter the widespread and powerful scientific evidence in favour of Shared Parenting. They have commissioned a couple of academics in an effort to discredit Shared Parenting, but the evidence in favour of Shared Parenting is overwhelming. The general consensus among social scientists is that Shared Parenting is beneficial to children. There are parallels with Oil Companies who commission selected academics to try to discredit the evidence for Global Warming.

    Instead, opponents of Shared Parenting are rather desperately (and mischievously) attempting to shift both the debate and their attack upon the notion of 50/50. The Baroness succeeded in getting the Express Newspaper to headline this 50/50 notion!

    Secondly, whilst the Baroness concedes that children benefit from Shared Parenting when their parents are behaving “sensibly”, she states that the children of parents who are not behaving “sensibly” cannot benefit from Shared Parenting, as this would be harmful.

    In the very common scenario in which the court-appointed Primary Carer (usually mum) is upset and aggrieved with any aspect of the separation or divorce, and refuses (or is emotionally incapable) to behave “sensibly” and refuses to facilitate contact , the Baroness suggests that the Secondary Carer (usually dad) should NOT be involved in the parenting of the child. The Baroness appears quite unable to perceive firstly, the injustice of her argument and, secondly, the long-term damage to the child in losing one of its parents. The Baroness gives paramountcy to the wishes and feelings of the Primary Carer mother.

    Thirdly, the Baroness appears completely out of touch with the current Zeitgeist concerning 21st century parenting. She is firmly wedded to the ideology of the 1960′s and 70′s which strongly held that children needed the nurturing of their mothers and the financial support of their fathers. In no other of the Baroness’s judgments is this out-of-date ideology so stark as in the judgment of Payne v Payne (2001).

    Regards
    Bruno D’Itri

  5. The Baroness claims:

    “I’ve heard one father who went into court saying, ‘Once this law is enforced, I will get half of the child”.

    Is she claiming to have heard this father in a case over which she was presiding? It seems so.

    However, the Baroness retired from the Bench many years ago, and well before the Shared Parenting Bill was aired.

    How, then. was she able to hear this father’s comments on the Shared Parenting Bill?

    In fairness, she may have intended to say that she had heard of the father’s comments from a third party, or that she had heard the father as he went into a court room whilst she was hanging around outside it.

    Of greater interest is the Baroness’s undying faith in the belief that “a child has to live in one place”.

    But is that really so?

    Should we start worrying about middle-class children who spend months each year living in their parents’ second holiday home? And should we be closing down their boarding schools?

    Should we remove all children from divorced parents who have happily agreed upon a Shared Parenting routine?

    There are many children who benefit from having one bedroom at their mum’s and a second bedroom at their dad’s, and who positively thrive from having a meaningful relationship with both of their parents.

    Confusingly, the Baroness declares that Shared Parenting is fine when parents are behaving ‘sensibly’. How does she reconcile this with her other declaration that a ‘child has to live in one place’???

    The Baroness comes across as a confused old lady with very old-fashioned and ill-conceived ideas.

    I rather think the anti-Shared Parenting lobby shoots itself in the foot whenever it wheels her out.

    Bruno D’Itri

    • I strongly uphold the notion of 50/50 as I truley believe that a child can benefit from consistant contact from both parents.
      I believe that the child will grow and develop happily with 50/50 shared parenting as this will be their normal arrangement. Adults should be able to make this work and be able to make an agreement.

      50/50 is a sensible starting point that can be varied to suit the family circumstances. eg if a parent works full time then perhaps the ratio of time can be mutually agreed. – 70/30 for example.
      If both parents don’t work then surely a 50/50 can easily work . This would surely be of benefit to all.

      I am saddened by what I have come to know as the norm – for mother’s to be automatically appointed as the primary care giver and the father having to fight for his right to see his child. I believe that this disproportionate power and control is very damaging. I know of too many mothers who want to ”punish” their partners and ultimately they make contact very difficult or impossible.

      As a separated mother I never, at any time, prevented my child from being with his father.

      I wholly support those fathers who are able and willing to have a meaningful and loving relationship with their children.

      As a society we should uphold the rights of the father and not just of the mother.
      And please not let us forget the children who have the right to know that their parent loves them.

  6. I am very pleased that our Government is set to amend the Children Act in order to protect the Right of a child to benefit from a meaningful relationship with both its parents, post separation/divorce.

    http://www.guardian.co.uk/commentisfree/2013/feb/05/children-family-bill-panel-responds?fb=native

    This was an original intention of the Children Act (1989), but has been relegated or misinterpreted by the judiciary (specifically by Lady Butler-Sloss).

    I have campaigned vigorously over recent years for the acceptance of the principle that a child’s paramount interests are served by the Court giving due regard to maintaining its meaningful relationship with both its parents.

    Sadly, to date, the judiciary has remained more focused upon the wishes and feelings of the so-called ‘primary carer’ (usually mum) and has relegated the importance of the involvement of the de-facto ‘secondary carer’ (usually dad).

    There have been well-publicised cases in which the judiciary has recognised this shortcoming in the law, but has been unable or unwilling to act.

    In the reserved judgment of Re D (Children) [2010] EWCA Civ 50, for example, the former President of the Family Division, Sir Nicholas Wall broadcast (and later reiterated in a Family Affairs interview) his carefully considered view that Relocation Law – in the form of Payne v Payne – ascribed too great a weight to the wishes of the primary carer and relegated the harm done to a child due to the loss of its meaningful relationship with the left-behind parent.

    Regardless of his concerns, however, he proceeded to apply the very legal principles in Payne v Payne which he had criticised! Wall was either unable or unwilling to challenge a legal precedent which failed to serve the best interests of the children.

    With the forthcoming amendment to the Children Act, the judiciary will now be FORCED to give due and proper weight to maintaining meaningful relationships between children and both their parents.

    It is very hard to see how the principles of Payne v Payne can now survive. Plainly, a child which has been removed thousands of miles from its home country cannot easily benefit from maintaining a meaningful relationship with the left-behind parent!

    I expect this beastly law to be consigned to the history books before too long. A law which effectively permits a mother to cut out – like a cancer – a father from the life of his child is utterly barbaric and has no place in 21st Century Britain.

    Regards
    Bruno D’Itri

  7. The Children Act of 1989 required the judiciary to serve the paramount interests of the child.

    Surely no one can disagree with this fundamental principle.

    The problem is that our senior judiciary has opted to interpret this paramountcy principle by adopting out-of-date suppositions which hark back to the 1960′s and 70′s. It has done so because of its rigid adherence to the system of ‘legal precedent’.

    Above all, a child needs the love and nurturing of its mother and the financial support of its father. Women are the emotionally weaker sex: if their wishes are thwarted by the court, their ability to parent their child will be adversely affected. A child can be raised quite satisfactorily without the nurturing of its father. A father may be permitted to share in the parenting of his child, but only if the mother is in agreement. If she is not in agreement, the father should not be involved in the parenting because this would upset the mother, and the resulting animosity would be harmful to the child. If a mother is found to have lodged false or exaggerated accusations of physical or emotional violence against a father, she should not be punished because this would harm her child.

    If these are the suppositions written into decades of legal precedent and indelibly ingrained in the minds of the senior judiciary – such as Baroness Butler-Sloss, Lord Justice Thorpe and Sir Nicholas Wall – then it is quite obvious that these judges will opt to interpret the Paramountcy Principle of the CA1989 by adopting those suppositions.

    A perfect example is Payne v Payne (2001). Butler-Sloss and Thorpe decided that the paramount interests of a child would best be served by ensuring that the child’s mother should not be upset by refusing her application to remove the child overseas. The unfortunate consequence – that the child would lose its meaningful relationship with its father – was not as important a factor as ensuring the happiness of the mother. In Re D (Children) [2010] EWCA Civ 50, Nicholas Wall refused to permit any challenge to the ideology of Payne v Payne, despite having being presented with a plethora of powerful scientific evidence in favour of shared parenting. Wall relegated the importance of that evidence.

    Our senior judiciary has utterly misjudged the best interests of the child by remaining stubbornly wedded to an out-of-date ideology of parenthood.

    The forthcoming amendment to the CA1989 – inserting a presumption of shared parenting – will hopefully rectify that serious judicial error.

    Regards,
    Bruno D’Itri

  8. There exists a plethora of psychological and sociological research (some of it Government-commissioned) which plainly demonstrates the benefits for children of remaining in meaningful contact with both their natural parents post separation/ divorce:

    http://www.fira.ca/cms/documents/181/April7_Kruk.pdf

    http://sharedparenting.wordpress.com/2012/06/21/12c/

    http://www.thecustodyminefield.com/Reports/FamilyLaw-Relocation_The_Need_For_Reform.pdf (pages 20 & 21)

    http://www.google.co.uk/url?sa=t&rct=j&q=scientific+evidence+for+shared+parenting+&source=web&cd=9&ved=0CGcQFjAI&url=http%3A%2F%2Fwww.aph.gov.au%2FParliamentary_Business%2FCommittees%2FHouse_of_Representatives_Committees%3Furl%3Dfca%2Fchildcustody%2Fsubs%2Fsub0909appc.pdf&ei=grP9UKHAPPKb1AXuh4DgDA&usg=AFQjCNHP38avU08444gTgcf4D7h3Kp69rg

    Of course, as with all scientific inquiry, evidence is never 100% conclusive. Selected research which undermines shared parenting in high-conflict situations can certainly be found.

    However, any meta-analysis of the research would show there is a general consensus amongst the scientific community that children generally benefit from being permitted to remain in meaningful contact with both parents.

    Furthermore, much of the scientific data in favour of shared parenting has already been exhibited as evidence at the Family Division of the High Court.

    After having read such evidence in the case of Re D (Children) [2010] EWCA Civ 50, the former President of the Family Division, Sir Nicholas Wall published his considered view that current family law relegates the importance of maintaining a meaningful and on-going relationship between children and their non-resident parent.

    In Re AR (A Child: Relocation) [2010] EWHC 1346, High Court judge, Sir Nicholas Mostyn J, also made reference to contemporary scientific evidence in favour of shared parenting.

    The scientific evidence in favour of shared parenting was also considered by the international judiciary when it formulated the Washington Declaration in 2011.

    Finally, it is vitally important to dismiss two prevalent myths concerning shared parenting:

    Firstly, shared parenting does not necessitate a 50/50 division of parenting time, and most parents are quite capable of understanding this point. Good and loving non-primary parents who currently find themselves excluded from their children’s lives for many months on end would, I am quite sure, be very happy simply to continue seeing their children on a frequent and regular basis at a below 50% level.

    Secondly, if there is evidence of verifiable danger to the child, contact can and will be restricted. The Bill makes this perfectly clear and I am quite surprised that those opposed to the legislation appear blind to this very important safe-guard. The Bill clearly does not undermine the Paramountcy Principle.

    —————-

    The Law Society is vehemently opposed to a presumption of shared parenting and strongly rejects any modification to the Children Act.

    It claims there is no evidence of any discrimination against non-primary, non-resident parents. Its leaders somehow seem oblivious to the fact that, week after week, many good parents find themselves unfairly excluded from the lives of their children, sometimes for many months on end.

    Of course, the raison d’etre of the Law Society is to serve the best interests of its membership, the Legal Industry.

    The Law Society is perfectly aware of the extensive and compelling contemporary scientific evidence which demonstrates, beyond any reasonable doubt, the significant benefits for children of remaining in meaningful contact with both their natural parents post separation or divorce.

    However, the Law Society also realises that shared parenting legislation is likely to be highly damaging to the interests of its membership.

    Many non-primary, non-resident parents unjustly excluded from their children’s lives will, quite naturally, employ the very costly (£200 plus per hour) services of solicitors and barristers in a desperate effort to regain contact with their children.

    Truly obscene sums of money begin to flow from broken families into the coffers of the law firms. The Family Justice Industry could be said to ‘feed’ upon the love an excluded parent has for his children.

    A presumption of shared parenting would permit a good and loving parent to be fully and meaningfully involved in his children’s lives, post separation or divorce, without the need for costly and lengthy litigation.

    In Australia, for example, litigation reduced by circa 30% following the introduction of shared parenting legislation.

    Plainly, a similar reduction in British family court litigation would prove extremely damaging for the Family Justice Industry.

    The Law Society thus faces a real dilemma.

    Should it stand up for the genuine interests of children and their parents and support shared parenting legislation? Or, instead, should it champion the interests of its membership and oppose it?

    Rather predictably, the Law Society has opted for the latter and has been attempting to convince Government officials that shared parenting legislation would be detrimental to the interests of child welfare.

    Can we really blame the Law Society for looking after its own? Not really. The livelihood of thousands of family lawyers hangs in the balance. They face significant hardships, perhaps even unemployment.

    Nevertheless, our Government’s overriding duty must be to serve the best interests of children and of their parents.

    Plainly, if our Government succumbs to the powerful and persuasive lobbying of the Law Society, it may fail in that duty.

    Our Government would be well advised to evaluate the views of the Law Society in the light of its plain and considerable vested interest in the status quo.

    Regards
    Bruno D’Itri

  9. I’ve just been fiddling with the zoom function of the SatNav on my new Audi (yes ladies… a new Audi!).

    I zoomed right out and managed to get the whole of Western Europe on the screen. This wasn’t particularly helpful in assisting me with my 1 mile journey to the local shops!

    Incidently, as a man, I feel compelled to use the SatNav for each and every journey, even short, familiar routes I could probably drive blind-folded!

    Anyway, while I was fiddling, it made me think about the Children and Families Bill, and about the need to ‘zoom out’ for perspective.

    There has always been a direct link between societal norms and legislation.

    Most significant shifts in societal norms have led to changes in legislation, but this has usually involved a tough struggle!

    Anti-discrimination legislation for people of different race, gender and sexual orientation all eventually followed in the wake of changes in society.

    However, in each case, the resistance from what I shall call ‘the forces of conservatism’ was powerful. There were significant vested interests in the status quo, and those who stood to lose out were not going to accept change without a fight!

    In each case, honourable campaigners for justice and reform were discredited, undermined, attacked and even murdered.

    Martin Luther King Jr’s letter from Birmingham Gaol touches my heart each and every time I read it. It is the quintessential call of any person facing discrimination and demanding justice.

    http://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html

    Now, I perfectly accept that Matt O’Connor of ‘Fathers 4 Justice’ is NO Martin Luther King Jr!

    However, his argument for justice for children is, in my view, Righteous. It is Good. It is Honourable.

    A child surely deserves to enjoy the love, care and guidance of two good and responsible natural parents.

    The ideology of parenthood of the 1960’s and 70’s saw the mother as the ‘natural’ carer and the father as the ‘natural’ financial provider. Family legislation reflected this ideology.

    Of course, societal norms have now changed. In 21st century Britain, BOTH genders are now viewed as natural carers and financial providers.

    Has legislation fully caught up with this societal change? No.

    Do fathers face systematic gender discrimination? Yes.

    Is this discrimination indirectly perpetrated via the legal constructs of ‘primary carer’ and ‘non-primary carer’? Yes.

    I am a good, responsible and conscientious parent. I know I am, because a judge found me to be so!

    And yet I was forced to endure two periods of separation from my beautiful children: firstly for 8 months and subsequently for 1.5 years.

    I now see my children once a month in a motel room in Eastern Europe.

    Any genuine ‘meaningful involvement’ in my children’s lives has been significantly undermined.

    I am not alone in my experience.

    There are thousands of perfectly good and caring British parents (mainly fathers) who face similar discrimination.

    To the “discrimination deniers”, to those who seek to preserve their vested interests in the status quo, and to those who are simply unaware of the discrimination, I say, think of that child, think of what he is missing, think of what you might say to him if he asked you why he couldn’t see his dad.

    Let us open our hearts and our minds.

    Let family legislation reflect modern parenthood.

    Let us support Tim Loughton MP and his shared parenting legislation in the Children and Families Bill.

    Regards
    Bruno D’Itri

  10. There is a major reason for this discrimination against fathers and it is simply this. Woman are the largest block voters in history. They make up 50% of the electorate, governments panda to the female voters by giving them greater rights. And the emotional needs of the woman come first even over the emotional needs of the children, if your child is 8 years old and says it wants to live with you (father) and not with mum they say its too young to have a voice, or its been pre programed by you the father to say those words. They say kids don’t know what they want. On the other hand if the child says it never wants to see its father again this is likely to be upheld by the biased courts. Especially if the mother ads a lie or two about abusive behavior violence, emotional blackmail etc etc etc.

    I do not attempt to demonize woman at all there are a great deal of decent woman who want proper equality as did the suffragettes who campaigned for equal rights not greater rights than men. It is politically and financially motivated and until it gets put right in law some woman will continue to use your children to punish you forever. And the lawyers will continue until public funding for family courts end pretty soon to profit from this.

    A Statutory change in law to give both Mother and father equal rights and contact that is workable and negotiable for both will continue.

    Also its funny how couples who agree a 50/50 contact time are allowed this by law and it is seen to be good for the child, however if you ask for 50/50 where the mother does not agree it somehow all of a sudden becomes against the child’s best interests and the law makes you out to be a criminal this also needs to be addressed.

    DJ

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