It is hard to imagine a more difficult issue arising on family breakdown than that of ensuring the children spend time with both parents in a routine that each of the parents agrees to.
It has to be remembered that many families do find a way through this very difficult time, making arrangements about the children between themselves and without the need for acrimony and upset. However, for various reasons, there are occasions when agreement just proves impossible.
During May 2012 the Queen's Speech at the State Opening of Parliament set out the Government's legislative plans for the coming year. One of the bills to be considered in that programme includes provision for the law will be strengthened to make sure children continue to have a relationship with both parents if families break up and it is in the children’s best interests.
The recent Family Justice Review, which was independently chaired by David Norgrove, considered the need for reform to the family justice system. It was acknowledged that children have a right to have a meaningful relationship with both their parents and the review considered whether further legislation was needed to support this. The review however ruled out using the law to give both parents equal time with their children. It is therefore somewhat surprising to see that issue arising in the forthcoming programme for the Government.
It should be noted that the terms ‘custody’ and ‘access’, although still widely used in soap operas, are no longer with us having been lost on the introduction of the Children Act during 1991. The term ‘contact’ now deals with the time the children spend with an absent parent and the term ‘residence’ addresses with which parent the children will live. There is no necessity to address matters of contact and residence within the divorce proceedings and indeed many parents who separate these days are, in any event, not married. The court does not become involved unless a dispute arises between parents and that can occur at any time.
A lot of separated parents now strive to achieve “shared care” of the children upon family breakdown recognising the needs of the children and moving away from the traditional and strict contact and residence arrangements. However shared care is not right in every situation.
“Shared care” is not the same as equal care ie the children do not have to spend the same amount of time with each parent but rather such arrangements convey the message that neither parent is in control; ie that both parents are equal in the eyes of the law. They have equal duties and responsibilities and the court expects the parents to co operate.
There is no right or wrong answer to these sort of disputes regarding children. The best interests of the children are the paramount concern for the court so what is right for one child may not be right for another child. Issues of age of the children, geography ie where everyone lives, respective work commitments, and the daily routine are all relevant factors to consider when advising on these disputes.
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