'Shared parenting' legislation amendment puts child welfare before equal access

A consortium of children's charities, which includes the NSPCC, have successfully campaigned for there to be an amendment to the Children and Families Bill. The charities feared the Bill could endanger the welfare of children whose parents were separating.

Exactly how will the 'shared parenting amendment' affect the welfare of children in parent separation?

The Shared Parenting Consortium

The Shared Parenting Consortium is led by Coram Children's Legal Centre (CCLC). The CCLC provides free legal advice, information and representation to children, young people, families, carers and professionals. The Shared Parenting Consortium's concerns lay at the adoption of clause 11. Clause 11 states that "courts should presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned with further the child's welfare” could lead to separating parents assuming they are legally bound to equally share access to their children.

The Children Act 1989

The consortium of charities wanted to ensure that clause 11 would not undermine section 1 of the Children Act 1989. Section 1 of the Children Act 1989 states that a child's welfare be the court's paramount consideration when the court determines any question with regard to the upbringing of a child or the administration of a child's property or the application of any income arising from it.

Successful amendments to Clause 11

Following the consortium's campaign over the last 12 months, clause 11 has been successfully amended. The clause now clarifies that "involvement” means involvement of some kind, either direct or indirect, but not "any particular division of a child's time.”

The crux of the amendment is that neither parent is entitled to a legally binding presumption of shared access and that the decision of access focuses on the best interests of each individual child rather than the parents.

In the Children and Families Bill Report titled Amendment - Clause 11: Welfare of the child: parental involvement, Baroness Butler-Sloss, once the most senior family judge in England and Wales said:

"The groups of parents whom I worry about in relation to Clause 11 are those who try to settle the arrangement for the children without going to court. In the absence of lawyers to advise either side, the stronger, more dominant parent may insist on an arrangement based on equality, or at least on disproportion which is not appropriate for the welfare of the children...”

"I also worry about those who would go to court with an erroneous view of what this clause actually means, and with an inbuilt sense of their rights rather than the best arrangements for the children. The purpose of this amendment is to give some clarity to the clause and to help the public come to terms with putting the welfare of their children first.”

Opposition to the amendment

The shared parenting amendment to 'water down' the right of absent parents to have on-going involvements with the life of their children, has not been met without criticism, namely for failing to cater for the welfare of parents.

Caroline Nokes, MP for Romsey & Southhampton North, spoke against the Amendment to the Children & Families Bill. Ms Nokes was sat on the committee which scrutinised the Children & Families Bill. Speaking at the debate, Caroline Nokes said:

"The purpose of the Bill was to produce legislation which ensured the child's need was the paramount consideration, and included the right to have an ongoing, meaningful relationship with both parents. The Bill which left my committee did this, and would have benefited the child and non-resident parent alike. The Bill which came back from the Lords does not. It removes almost any expectation an absent parent may have of enforceable shared parenting arrangements.”

What are your thoughts on the shared parenting legislation amendment? - Does it ensure children are better protected? Or does unfairly waver the rights and their undermines the welfare of parents?

As a family law practice in Liverpool, serving St Helens and the Wirral,Tracer Miller Family Law deals with a large volume of separations a year in the UK. If you have any concerns about a separation and how it might affect your child, one of our expert divorce solicitors will be able to offer you advice.

*Please note following ratification of the United Nations Convention on the Rights of the Child, in most countries, the terms "contact” and "residence” have superseded the concepts of "custody” and "access”. However as "custody” is still widely recognised and used in this context we refer to it throughout this article.