At a recent speech to the charity Families Need Fathers, Sir Nicholas Wall, President of the Family Division of the High Court warned that separated parents can cause enormous harm to their children by using them as “both the battlefield” and “the ammunition”.
He claimed that there is nothing worse for children to hear their parents arguing while disagreeing about contact arrangements, pointing out that parents often found it difficult to understand that their children love and have loyalty to both parents. He also addressed the issue of parents being unable to realise the damage they do to their children by the battles they wage over them.
He further warned that in his experience “the more intelligent the parents, the more intractable the dispute” and advised that a less confrontational approach was needed in the family justice system.
Sir Nicholas said that Parliament, rather than judges, should decide whether shared parenting orders – where children live with each parent at different times – should become the norm over the children living with one parent and having regular contact with the other. He made it clear however that he believed it important for both parents to carry on playing equally important roles in their children’s lives.
When the Children Act 1989 came into force, it was not expected that a shared residence order would become common, partly because a child needed the stability of a single home and partly because in cases where shared care was appropriate, it was less likely to be a need for the court to make an order at all.
It hasn’t exactly worked like that.
Recent case law indicates that absolute equality of time between the parents is not essential before a shared residence order can be appropriate. Nor is it a pre-condition for there to be a cooperative relationship between the parties.
The tide appears to be turning. A recent case, in which the mother was dismissive of the father’s role in the child’s live, made a shared Residence Order, the Judge suggesting that this should be the norm as it avoided “the psychological baggage of right, power and control that attends a sole Residence Order”.
As family law expert at Harrison Drury and a member of Resolution, a collective of almost six thousand family lawyers across the country who are committed to non-confrontational divorce, I hope the concept of shared parenting and resolving disputes through mediation will indeed become the norm, rather than battling cases out in the court rooms.