Shared Parental Responsibility and Divorce

Having rejected the findings of a report it commissioned into the parenting of children after divorce, the Government has thrown into doubt the whole area of how this issue will be dealt with in future.

The Government recently issued its response to the independent review of family justice in England and Wales, which was produced by a panel chaired by David Norgrove. The response has been met with mixed reactions, with fathers’ rights groups welcoming it whilst some family law practitioners have been critical.

Mr Norgrove was instructed to work on the principle that the positive involvement of both parents with their children following separation should be promoted. Fathers’ rights groups, such as Families Need Fathers, have long campaigned for shared parenting on divorce.

The review, however, rejected the premise that there should be a presumption towards shared parenting. It stated that such a legislative change might compromise the principle laid down in the Children Act 1989 that the child’s welfare should be the paramount consideration in decisions made by the family court. The review also concluded that legislation was an inappropriate means of promoting the concept of shared parenting, education being considered more appropriate.

The Government’s response announced its intention to make a legislative statement emphasising the importance of children having an ongoing relationship with both parents after family separation, subject to this being safe and in the child’s best interests. This was a possibility considered and rejected by the review due to a perceived risk of confusion arising as to whether this raised a presumption of shared parenting.

Family law practitioners have pointed out that the Norgrove review reached its conclusion after a careful study of all the available evidence and, in particular, consideration of the operation of a presumption of shared parenting introduced into Australian legislation in 2006, which has led to severe delays in child custody cases. David Norgrove, commenting before the Government’s response was issued, said, “If the Government has decided to legislate, I regret that and it will be vital to find words that avoid the difficulties encountered in Australia.”

The Government has said that it is mindful of the Australian experience and will consider how legislation can be framed to ensure that a meaningful relationship is not about equal division of time but the quality of parenting received by the child.

It remains to be seen how the legislative statement will be worded and whether the difficulties encountered in the Australian courts can be avoided.