Should the law be changed to ensure children spend equal time with each parent after divorce?

One of the biggest anxieties for parents getting divorced is the arrangements for their children. Many clients are surprised when I tell them that there is no legal presumption that children should spend equal time with both parents. In this blog, I consider whether the law should be changed to specify this as a starting point.

“Every child has a right to a meaningful relationship with both parents but at present the law does not make this clear”

The law states that both parents have equal rights and responsibilities for their children. So, it would seem logical to assume that the law provides that children should spend equal time with each parent if the relationship ends. In fact, this is not the case.

The starting point is that the court will only set out arrangements for children if the parties cannot agree. If the parties are in dispute, the court can make a range of orders including specifying who the children should live with and how frequently the parent they don't live with is to have contact.

The guiding principle for the court is to act in the children's "best interests" taking into account factors such as:

  • The child's age, sex and background
  • The child's wishes (sometimes, children over the age of nine can be required to attend court so that their wishes are considered)
  • The child's needs
  • The likely impact on the child of any change of circumstances, including having to move backwards and forwards between two homes (especially in the case of young children)
  • Any harm the child may be at risk of suffering
  • How capable each parent is of providing for the child's needs bearing in mind matters such as their work or living arrangements.

Unfortunately, there is no consistency among parents, lawyers and judges what "the best interests" of the children are and how this translates into the time they are required to spend with each parent.

Many people believe this can lead to gross unfairness. In 2017, Conservative MP Suella Braverman introduced a Family Justice Bill in 2017 calling for a change in the law so that there is a presumption of shared parenting.

"Every child has a right to a meaningful relationship with both parents but at present the law does not make this clear," she said. "In the worst cases, 'parental involvement' from divorce settlements can amount to little more than a birthday card, effectively airbrushing a non-resident parent from a child's life."

Earlier this summer, YouGov carried out a survey asking 2,000 people to what extent they agreed that there should be a presumption that children should spend equal time with their parents following divorce (excluding cases where there is a proven risk to the child). Eighty percent agreed.

The survey was commissioned by FNF Both Parents Matter Cymru whose vice-chair of trustees, Anne O'Regan, said: "It's a living bereavement for the parents and grandparents we see at our support meetings, broken by the selfish actions of controlling parents who simply grab the children, pull up the drawbridge and say 'take me to court' knowing that this will be impossible for many to afford."

The government has committed itself to end what it has called "mudslinging" on divorce and recently introduced the Divorce, Dissolution and Separation Bill to bring an end to the current fault-based divorce system. (At the time of writing, this bill has been derailed by the Brexit shenanigans at least for the time being.)

This bill does not include specific provisions dealing with shared parental responsibility at present but Suella Braverman believes the government should take action in this area. "It is time the government exercises its potential to address the problem of children growing up in broken families and rectifies some of the serious injustices inherent in England's current divorce law," she says.

I certainly would welcome the clarity a change in the law would give and think it would reflect what society now regards as normal, with both parents taking an equal role in the upbringing of their children.

If you have any queries regarding arrangements for children on divorce or separation, please contact me at [email protected].