Should there be a presumption of shared parenting in Scots law?

Research in the fields of psychology and sociology shows that children benefit from having both parents involved in their lives and that more frequent and regular contact is associated with closer relationships between children and non-resident parents. Other jurisdictions, such as England and Wales, already have a presumption in law that children’s welfare will be furthered, unless the contrary is shown, by involvement of both parents in their lives.

There is support from some quarters for such a change here in Scotland. Others go further by suggesting that there ought to be a presumption of ‘shared parenting’.

Earlier this year, the Scottish government launched a consultation on a wholesale review of family law. Shared parenting was touched upon in this process.

The actual proposed change does not go as far as a presumption in favour of shared parenting, however. Rather, Question 23 asks: Should there be a presumption in law that a child benefits from both parents being involved in their life?

What is the law in relation to child contact currently?

At the moment, separated parents are free to come to any agreement which works best for them and their children. In cases where they cannot agree, they can apply to the Court to make an Order regulating childcare. Even when matters have not yet reached the Courts, the legal framework is important to bear in mind for those individuals who are seeking to negotiate in the shadow of the law.

The overarching consideration for the court in determining what, if any, Order to make in such cases is what is in the best interests of the child. The Children (Scotland) Act 1995 makes it explicitly clear that the welfare of the child in question is to be regarded as the paramount consideration, and the court must be persuaded that it would be better for the child that the order is granted than that no order is granted at all (otherwise known as the minimum intervention principle).

In terms of residence, although the welfare test can be criticised for its vagueness or conversely applauded for its flexibility, this will often come down to who is best able to provide for the child’s needs. The law is not gendered, and does not consider that the mother or father, or either parent in a same-sex relationship, has a greater ‘right’ to have a child living with them. Insofar as contact goes, the parent with whom the child is not living primarily has a responsibility from which follows a right to ‘maintain personal relations and direct contact with the child on a regular basis’.

With some limited exceptions, both parents retain equal parental rights and responsibilities, and are obliged to continue to consult each other on all matters relating to the child’s welfare and upbringing. The legislation also emphasises parental responsibilities towards their child, rather than their rights as a parent. Section 2 makes clear that a parent has parental rights in order to enable him to fulfil his or her parental responsibilities.

The legislation is therefore child-focused rather than parent-focused. In strict legal terms, then, each parent does begin the process on an equal statutory footing.

Would a presumption of parental involvement change anything?

It is questionable as to whether a presumption that a child would benefit from having the involvement of both parents in their lives would change anything in practical terms. What is the difference in practice between having equal parental rights and responsibilities, and having a statutory presumption that a child will benefit from having involvement from both parents? Our laws already encourage a child-centred co-parenting approach, by positing the needs and interests of the child as paramount and emphasising the retention of equal parental rights and responsibilities of both parents.

What is shared parenting?

Many suggest that the law should go further, and provide that it should be presumed that parenting should be shared between separated parents, or parents who were never a couple. Whilst most may not explicitly say that ‘shared’ is taken to denote equality in terms of time spent with the child in question, many interested groups admit that a 50/50 split, or close to 50/50, is to be aspired to.

This 50/50 approach is closer to what is more commonly referred to at the moment as ‘shared care’, where for instance a child’s week is split three nights with one parent and four nights with the other, and then alternated the next week, or where a child spends alternate weeks with each parent. In many cases parents reach a shared care arrangement themselves and this is what works best for them and their children. When parents are flexible, relatively amicable, and can cooperate and communicate well and with their children’s interests at the forefront of their minds, these arrangements work well and should indeed be actively encouraged by legal practitioners where they are in the best interests of the child.

The concerns: Parent-centred shift

A significant challenge to changing the law by enshrining a presumption of shared parenting in statute is the concern that it will shift focus away from the child’s interests and onto the parents’ interests. Whilst it is undeniable that in the majority of children’s lives in Scotland both parents matter, this legislative presumption would indeed risk undermining the key principle of regarding the child’s welfare as the law’s paramount consideration.

There is a concern that in practical everyday terms it would be construed as a ‘right’ to equal time by parents, which would lead to separated couples beginning negotiations in entrenched positions based on this adult ‘right’ rather than focusing on what is right for their child.

There is a concern that, in turn, this could lead to an increase in parents choosing to launch legal battles to champion their own rights and further their own interests, which could adversely impact on the child’s welfare and lead to significant emotional stress.

The concerns: Domestic Abuse

A further challenge is how this change to the law would affect children from families affected by domestic abuse, or where there is simply an imbalance between the parents’ respective dominance and control. Although the presumption of shared parenting could be rebutted by evidence of abuse, for instance, this could still be a concern in cases where parties do attempt to negotiate extra-judicially. One party could quite conceivably be coerced or pressured into agreeing to a childcare arrangement which is not in the child’s best interests.

There is a tangible risk that having a legislative presumption in favour of shared parenting could expose Scottish children to care arrangements which do not protect them from domestic abuse or high conflict relations between their parents. It could also be used as a method for one party to perpetuate their existing psychological abuse of the other.

The concerns: Adverse Childhood Experiences (“ACEs”)

Research carried out in the United States found that the separation/divorce of parents is an ‘adverse childhood experience’ which can cause toxic stress in children in turn putting those children at increased risk of lifelong health problems. Parents should be mindful of the effect their handling of a separation can have on their child. By avoiding a situation in which each parent enters negotiations from a position of what is their shared parenting ‘right’, and instead focusing parents’ minds on what is right for the child, we may be on a better track to reduce the child’s exposure to conflict.

There is also a risk, if shared parenting is the default position, that children who due to the family dynamic spent most of their time with one parent prior to the separation could find themselves in a shared care arrangement for which they are simply not ready and which could have lasting negative effects.

What about Sweden?

Sweden is often held up as the nation to aspire to in terms of shared parenting laws, and positive outcomes from a presumption of shared parenting do seem to be produced from this jurisdiction. However, we should be cautious about looking at these reports in a vacuum, and about readily comparing Scotland to Sweden without an understanding of wider factors at play.

A very small proportion of shared parenting arrangements are court ordered in Sweden, which suggests that separated couples are able to agree them readily themselves without court involvement.

There are marked differences between our two nations. Swedish laws and public policies have made strides in the sphere of gender neutrality for the last 50 years. For instance, gender neutral parental leave, offering mothers and fathers paid parental leave, was introduced in Sweden in 1974 and the policy was promoted at “involved fatherhood”. So, for some 20 years both parents have been encouraged to share parental leave equally. There are other policies which further the Swedish goal of gender equality in parenting, and support a dual earner model which aims to get both parents out to work and be financially self-reliant, but also sharing in childcare pre-separation.

In the UK, we have lagged behind countries like Sweden in moving away from the traditional model of the family where mum stays at home and dad goes out to work. Unpaid paternity leave was not introduced until 1999, and two weeks’ paid paternity leave not offered to fathers until 2003. Additional Parental Leave was then introduced in 2010, giving fathers the ability to take more leave but only after their partner had returned to work and only from 20 weeks post-birth. Concurrently, maternity leave was extended, and so whilst the reforms to paternity leave were a step in the right direction, this arguably did not do much to challenge the assumption that mothers are the primary carers.

The encouragement of women still to take more leave than men perpetuated the norm of childcare being a role mostly for mothers. So, once parties separate in the UK, it is still very often the case that mothers have been the primary carer. In turn, it would be artificial and perhaps contrary to the child’s best interests to seek suddenly to introduce shared care arrangements.

Speak to a solicitor

It remains to be seen whether any presumption in terms of shared parenting or involvement of both parents in the child’s life will make its way into Scots legislation. Whatever the terms of any change, we should not lose sight of the child in the middle of every residence and contact dispute. If you need advice in relation to the arrangements for your child, please get in touch with a member of our team.