According
to the solicitor Duncan Ranton writing in the 'Solicitors Journal'
('Shared Parenting boosts children's rights', 13 February 2012),
Contrary to media
reports that this is the government championing father’s rights,
however, the proposal to enshrine in legislation that it is
important
for children to have a meaningful relationship with both parents is
not about parental rights. It’s about children’s rights – their
entitlement to see and have quality time with both parents, save in
exceptional cases. The expression ‘quality time’ is bandied about
too frequently and carelessly. As a result, it has lost much of its
credibility and currency. However, it has a meaning, to be found in
the many longitudinal studies of children following parental
separation: in short, children generally benefit hugely from seeing
and spending good-quality time with both mothers and fathers.
Positive outcome
The FJR apparently
shied away from its initial recommendation because of perceptions of
what happened in Australia after legislative reform in 2006; that to
confirm legislatively a child’s right to a meaningful relationship
would translate into non-resident parents using that as a
fulcrum to
demand an equal division of time.
But was the
legislation in Australia a disaster? No, far from it. In 2009,
following a three-year study of 28,000 participants, the Australian
Institute of Family Studies found the legislative reforms a
substantial success. There was a decline in court filings and a shift
away from parents rushing to court to resolve post-separation
difficulties. A greater proportion of parents reported they were able
to resolve issues themselves, supported by associated family
relationship services. Nevertheless, the review confirmed that the
family law system still had some way to go in responding effectively
to the minority of cases where there were issues of family violence,
child abuse, mental health or substance misuse. For children for whom
these were not features of family life, the legislative reforms were
found to have worked well.
I believe,
therefore, the UK can benefit from Australia’s experience. We have
seen the family justice budget decimated and access to courts to
resolve parenting issues in anything other than truly urgent cases is
beset by chronic delay. If parents know from the outset that a judge
will approach most cases from the proposition that the child’s
welfare requires a continuing and meaningful relationship with both
of them, this will help promote agreement in many cases without the
need to enter the court arena. That certainly seems to be the
Australian experience.
No legislation can
ever realistically hope to cater for every permutation of
circumstances. Rather, good legislation should be directed to the
majority of cases, while ensuring sufficient flexibility remains so
justice may be done in those that are exceptional. The government’s
proposal strikes that balance. The introduction of a statement
reiterating the importance of children’s relationships with both
parents post-separation is appropriate for, and will assist in, the
lion’s share of separated families. There will remain an important
minority for whom this mission statement will be inappropriate to
direct the outcome, because of child protection issues.
I welcome the
government’s stance, and support it. Given the real and continuing
problems with access to justice and funding, coupled with the damage
research demonstrates children sustain during bitter and protracted
custody disputes, we do not have the luxury of timidity or inaction.
Reform is needed, and this reform is a positive one.
In Australia an
outspoken opponent of Shared Parenting legislation is Jennifer
McIntosh Ph.D. In June 2011 Dr McIntosh was made the ‘guest editor’
for a special issue of the Family Court Review on 'attachment'.
Professor Michael
Lamb of Cambridge University made the following criticism;
The Family Court
Review Special Issue edited by McIntosh provided a misleadingly
narrow view of attachment theory and of previous attempts to explore
the implications of that theory and related research for family court
professionals. For example, the editor chose to interview
professionals whose opinions seemed likely to accord with hers, and
when they dissented, she failed to explore the implications. She thus
represented Bowlby’s notion of monotropy as though it was an
established and accepted fact; neither the research (which shows the
idea to be incorrect) nor Bowlby’s own later disavowal of the idea
were addressed, although the implications are profound. More
generally, the extensive relevant scholarship was ignored and
unrepresented, leaving the unchallenged focus on the editor’s own
research and on opinions that accord with her own. As a result, the
Special Issue became a platform for opinion, rather than a forum for
critical examination of the literature. (Wasted opportunity to engage
with the literature on the implications of attachment research for
family court professionals, Family Court Review, Volume 50, Issue 3,
pages 481–485, July 2012).
According to the
'The Australian' newspaper because of Shared Parenting legislation
'Single dads riding higher but stigmas remain' (Patricia Karvelas &
Pia Akerman, April 13 2013),
In 2006, the Howard
government overhauled the family law system. The centrepiece was a
requirement for Shared Parenting, allowing children the right to
continue to know both parents. The move received bipartisan support
from Labor despite strong internal resistance from feminist elements
in the party, who were concerned it would deprive mothers of rights
and could put children at risk. Five years on, the Gillard government
- after reports criticising the new shared-care system - changed the
laws, placing greater weight on child safety, meeting a key criticism
of the Howard reforms.
This article
describes how Shared Parenting legislation was introduced despite
opposition from 'feminist elements' such as Dr McIntosh.