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Our blog provides illustrated practical guides for those going through the divorce process, plus news on divorce, money and family breakdown.

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8 February 2012

Shared parenting after divorce: should it be made compulsory?

The Government has recently published its response to the Family Justice Review.

One of the areas considered by the Family Justice Review was shared parenting after divorce – specifically, whether to create new legislation meaning that both parents are automatically given contact to their children after they divorce.

The Government has decided, as the rumours suggested (see an earlier post on this blog) and against the recommendations in the Family Justice Review, that it does want to change the law in England and Wales so that children whose mothers and fathers have divorced can have better contact with the parent they do not live with.

Commenting on shared parenting the Government says in its response to the Review:

“The changes in education and the introduction of parenting agreements which the review recommended will help ensure better recognition of the joint role of parents within wider society.
We also accept the need to clarify and restore public confidence that the courts recognise the joint nature of parenting. We will therefore make a legislative statement emphasising the importance of children having an ongoing relationship with both their parents after family separation, where that is safe, and in the child's best interests.
We will … consider very carefully 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.”
Speaking on the Today program, the Justice Minister Ken Clarke said:
"We're stating what I think is the view of most people, that both parents have rights and responsibilities towards their children, and the children are entitled to try to maintain contact with both parents if it's at all possible.
But what we're doing is going to state that principle in the law, because there are far too many people who still think it's not being applied, though I think the courts do apply it, and try to apply it, in most cases."
In their response to the Family Justice Review, the Government explicitly stated that they are “mindful of the lessons which must be learnt from the Australian experience of legislating in this area, which were highlighted by the Review and led them to urge caution.”

The Family Justice Review did indeed look carefully at the situation in Australia, where such legislation on shared parenting post-divorce is in force. The Review decided that, whilst shared parenting itself after divorce is undoubtedly a good thing, legislating to try to achieve it is not.

Nicholas Cusworth QC, Chairman of the Family Lar Bar Association (the professional body for family law barristers), in responding to the Government’s proposals gives his view on why legislating on shared parenting may not be a good idea:
".. there are a number of elements of the Government's response where question marks remain. On shared parenthood, we agree with the Family Justice Review's finding that, learning lessons from the Australian experience, legislating on this issue risks creating the perception that there is a right to substantially shared or equal time, for both parents. It is already widely understood and applied by the courts that children benefit from having a relationship with both parents and legislation would be unnecessary and may do more harm than good. The Government must consider this with the greatest of care.”