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Is shared parenting going to become the new default in Scotland after parents separate?

The Scottish Parliament is currently considering a new Children (Scotland) Act. One subtle change proposed might create the most major change in…

The Scottish Parliament is currently considering a new Children (Scotland) Act. One subtle change proposed might create the most major change in family law in a generation. 

Shared care being considered

The game changer specifically is the proposal that there be a requirement to consider equal residence arrangements for both parents as a default provision if there is a separation. 

Reasons for change?

For 25 years the Children (Scotland) Act in 1995 has certainly endorsed the idea of equal parental rights and responsibilities, but applying those rights and responsibilities in equal measure in practice has always proved difficult. There have been several reasons for that:-

Inherent bias?

  1. Initially the legislation did not automatically give such rights to the father unless married to the mother or later named in the birth certificate. By doing this, there was arguably an inherent bias from the word go in favour of mothers.  

Practical difficulty

  1. Practically, when parents split up, one generally moves to a different property. Therefore, only one parent, certainly initially, has the children with them. This often leads to certain perceptions that that parent has more of a caring role for the children, even if that was not the position when the parties were together.  

One parent controls?

  1. Anecdotally, the person moving out more often tended to be the man. While in some cases that has been through choice, or there may have been domestic abuse so the move of one parent from the home or the parties seeking other accommodation has been through necessity, in the vast majority of cases the move has usually been well meaning to an extent to avoid the parties continuing to have to live together unhappily. However, this often has dramatic consequences for the parent leaving as they have then rightly or wrongly been perceived as leaving the children in the other’s care and control. This is when the real problems have occurred with the remaining parent then being able to exert significant control by allowing or refusing contact with the children at their whim. While they both might have had the same parental rights in theory and be told as much by a lawyer, in practice the absent parent has to submit to or go along with the other parent’s wishes for fear of not being given contact. The ‘absent’ parent (a phrase borrowed from child maintenance legislation which likewise gives the air of bias/ negativity towards that parent) may have had the same equal rights but in practice cannot exercise them easily. 

Court as the default?

  1. While they may be entitled to legally exert those rights the onus has been on the absent parent to do so even when they have done no wrong. The absent parent finds themselves in the unenviable situation of only being able to properly exert their rights by going to court. The time and considerable expense of going to court is then borne by that parent who may not have done anything wrong.

Lack of judicial consistency?

  1. The court then has a wide discretion as to whether to allow contact leading to a lack of consistency in judgments. Often judges decide what is appropriate based on their own knowledge and experience of family life. Judges might be a generation older than the parents before them. The judge might have an outdated view of modern family life. Many judges are open-minded and liberal in their approach. Many judges are also being recruited at a younger age. However, the fact remains that the absence of any starting point for the court creates uncertainty as to potential outcomes, lots of argument and ultimately a lack of consistency in judgments.

Delay

  1. The other issue which creates an inherent bias against the absent parent is the time it actually takes to get an action raised and get a decision of the court. This is not the courts’ fault as they have to juggle a huge number of these cases when many should not perhaps even be there in the first place. While the early fixing of a Child Welfare Hearing has been a great help in that respect, there is usually insufficient court time available to resolve matters completely and often further reports and hearings are necessary before proper headway is made. As a result, it remains the case even now that the delay caused is often used by the parent with care as an argument to avoid contact being granted or indeed care being shared. Judges themselves regularly delay re-instigating substantial contact for this exact reason. Parents have often been left with a sense that the system is weighted against them. Without wanting to apportion any blame, there is no getting away from the fact that the current system could be substantially improved. It takes longer than it should, it costs far too much for the parents involved and there is a lack of consistency in judgment.

Self-perpetuating problem?

  1. Crucially, while everyone, including lawyers and judges, knows that the present system is flawed and can give rise to unfairness, one of the particular reasons this has persisted is that when parties go to take advice from their lawyers they will be advised that, notwithstanding that they may have equal rights and responsibilities, unfortunately what might happen in practice is different and there is little they can do about it. So it is a self-perpetuating problem continuing the inherent bias and disenfranchisement. This is not the lawyers’ fault either though, as they have a duty when advising clients about their rights, not just to advise them what the legislation says but how that actually is likely to be interpreted and administered in practice. 

Lack of sanctions

There is for example, little in the way of reprimand for a parent ignoring the other parent’s right to have contact. Acting in contempt of a court order to allow contact rarely ends up with any form of sanction or punishment. What message does that send out? Their own solicitor, if asked, will be forced to say to a client who is contemplating refusing or obstructing contact, or has already done so, that in practice little will happen and the other parent will need to go to court if they don’t like it.

Just accept the system as it is?

Added to that is that when asked what contact to offer the other parent (if any ) the solicitor will advise of the law but explain that the parent with care can effectively decide as there is no fixed entitlement to certain times or to shared care until a court rules on it. Even if it goes to court, the court will consider what both parents say about the whole situation first before deciding, even if they do have the same rights in law. This is a difficult thing for the “absent” parent to swallow, understandably so, as they are being told that, notwithstanding that they have rights enshrined in law, they need to go to court and provide proof that they are entitled to them all over again. Likewise, this is the cue for the other parent who wants to retain control jumping on that legal advice to restrict or refuse contact. When one parent has already refused contact they often go on the defensive and churn out old and irrelevant accusations to try and back themselves up as having acted responsibly.

Paradigm shift?

So would the simple presumption of shared parenting really change  all that? In the writer’s professional view, it would. It may take some time but it would represent and influence a paradigm shift in the approach taken to parenting by the Government, solicitors and the courts. Most importantly, it will inform and influence the attitude to be taken by parents. 

There are a variety of reasons for this:-

Consistent starting point

  1. From the outset, solicitors would be starting from the same perspective when advising parents on what arrangements should be proposed and set up for the care of their children. There would therefore be much less room for argument from the off. 

Less room for argument

  1. When clients are told the position and that the law is clear and unequivocal most will accept that. When the law provides certainty and a strong starting point it leads to less argument. 

Shift in onus

  1. If the courts have as their starting point that both parents will share care the onus will shift to the parent trying to prevent contact rather than the present biased system where the parent who has done nothing wrong has to justify and ask for what is already enshrined in law. 

More meritorious approach to court actions

  1. If a parent has good reason to suggest the court should alter arrangements away from the normal shared arrangements, that parent will still be entitled to raise that at court as they are allowed to at present. The court will still have the discretion to alter the arrangement if there is good reason. However, this will not be in one parent’s discretion but will be through proper channels via the court. If it is urgent or very serious the police and social workers will always be available to deal with those kinds of cases. However, if it is still important enough that the parent believes the court should put in place a different arrangement or restrict it altogether then that parent will have to show why. 

Expenses of court action more fairly shared

  1. The issue of expenses in family cases might also be altered for the good. At present there are very few cases where expenses are awarded against a parent who has prevented contact without good reason. There is therefore a real financial disincentive to a parent exerting their rights and responsibilities via the court at present. Some might say shifting the onus to the parent suggesting contact should not take place as it might place extra pressure on them. However, emergency legal aid is available for such cases of hardship. Otherwise the financial implications will help focus a parent’s mind and intentions. It will also prevent spurious and frivolous actions blocking up the court timetable, as currently happens on a frequent basis today at great cost to the taxpayer. If a parent goes to the effort of raising proceedings to stop or restrict contact, there should be good reason. Accordingly, if their action is resisted and they are vindicated, the court should award them expenses if they have not been legally aided. On the other hand, if they raise an action without merit, the court will be able to award expenses against them which they should rightly pay if they have wasted the court’s time and acted against the best interests of their children in seeing their other parent. There will be no prejudice to either parent acting appropriately and it will be in the best interests of their child if the onus is shifted in this way. It will also send out a clear message to the public about how parental rights will be considered. 

Is now the time for change?

In terms of whether now is the appropriate time to change the law and bring in this new approach, the evidence seems clear. It has already been tried successfully in other nations and has led to a more sensible and less acrimonious approach to parenting. There is further evidence here as well not only from leading academics that shared parenting is the ideal that we should be striving for, but also from the public themselves.

Public view?

In particular, a recent survey published by Shared Parenting Scotland showed that of 644 respondents 81.5% said yes when asked whether they would support a change in the law to create a presumption of shared painting - meaning children spend half their lives with each parent unless there is a good reason not to.

89% agreed that shared parenting equally takes pressure off both parents allowing them to balance work, family and social lives.

76% agreed the sex of the parent should not be a relevant factor in the court making determinations about the living arrangements for children after separation, 

89% agreed that mothers and fathers should have equally important roles in supporting the child emotionally, socially and financially. 

Expert evidence

Leading experts advocate that ordinarily shared care is better than any other arrangement where one parent doesn’t see the child as often. Except in cases where there is abuse or inappropriate behaviour on the part of one of the parents it should be the norm in this day and age. While it may present some challenges when working out how to operate it in practice, other countries have shown it can work successfully. 

Keeping up with the times

Negotiated agreements that are made outwith court between parents now regularly have shared care arrangements. The practical difficulty of tying it in with working arrangements has been lessened with the advent of more flexible working patterns in the last 20 years. The widescale adoption of homeworking policies due to the Covid 19 crisis should result in even less impediment to parents being able to share their responsibilities for childcare in the future.

Change being considered

The Scottish Parliament are considering whether to take these proposals forward. If they do it will surely represent the most significant change in the approach taken to parental rights in a generation.

Noel Ferry is a Partner based in our Glasgow office specialising in Scottish family law. If you have any questions or would like to discuss this update further please contact Noel at noel.ferry@weightmans.com.

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