Shared parenting: A 70% solution? (original) (raw)

2002, Social Science Research Network

In the context of increased litigation over contact, this article examines the debate around proposals for a presumption of 'shared parenting'. It concludes that such a presumption would not achieve the aims of its proponents. Its introduction would also be fraught with practical and doctrinal problems. n 1987 Michael King 1 criticised the Law Commission's proposals for the reform of the law relating to custody and access, the proposals that were subsequently embodied in the concept of parental responsibility in the Children Act 1989. 2 He argued that custody battles were often seen as symbolic contests affirming the parties' relative fitness as parents and that joint custody often amounted to a mechanism used to mollify non-residential parents. The proposed changes would likewise, he said, be largely symbolic in nature. They would have limited practical significance since courts have no control over future events, orders are subject to extra-legal re-negotiation and, in the case of older children who can vote with their feet, the court's pronouncement can be overridden completely. To suggest, as the Law Commissioners did, that the law is capable of 'maintaining beneficial relationships' is to confuse legal rhetoric with social reality. 3 While the symbolic recognition of both parents might help to reduce bitterness, King said, the law is not capable of changing human behaviour. In fact, the report of the Law Commission in 1988 reveals that the Commissioners were not solely preoccupied with the supposed instrumental effects of the law. 4 They suggested that giving equal status to parents should not only be seen as part of a general aim to encourage both to feel 'concerned and responsible' 5 for their children, but also as part of the objective of decreasing the incidence of symbolic litigation. 6 It was hoped that the incorporation of the concept of parental responsibility into the Children Act 1989, together with the 'no-order' principle, would have the effect of reducing conflict. Because neither parent would lose parental rights or status on divorce, there would be less to fight over. 7 The persistence of parental responsibility, it was thought, might lower the stakes and avoid casting the non-resident parent in the role of 'loser' who loses all. 8 NEW PRESSURE FOR CHANGE Yet the package that the Children Act 1989 offers to parents would appear not to have worked to increase parental cooperation and decrease litigation and, once again, dissatisfaction with the lot of non-resident parents is being voiced. First, evidence suggests that cooperation in the form of joint parenting and joint decision making are far from the norm; indeed, many 1 'Playing the Symbols-Custody and the Law Commission' [1987] Fam Law 186. 2 Family Law, Review of Child Law: Custody, Working Paper No 96 (HMSO, 1986). 3 Referring to para 3.7 of the Working Paper (ibid). And further: 'Here it seems to me, the Commissioners are entering a fantasy world in which the courts have the power to ensure the welfare and happiness of all children who come before them' (M. King, op cit, n 1, at p 187).