Tim Loughton is the Member of Parliament for East Worthing and Shoreham, and was Parliamentary Under Secretary for Children and Families from 2010 until 2012. Follow Tim on Twitter.
Inevitably, this week’s headlines have been dominated by the
controversial vote over gay marriage the media’s delight at being able to trot
out the usual hackneyed clichés about Tory Party splits. That conveniently
ignores the fact that this was a free vote on a conscience issue and inevitably
Conservative MPs, and indeed those from other parties, will have differing
views and will be accountable to their own constituents.
Lost in the melee of last Tuesday was the Children &
Families Bill unwisely published on the same day. I say unwisely because it contains some
really good legislation about improving support for getting more children
adopted, shared parental leave and crucially shared parenting. And I
narcissistically say good stuff because it reflects the culmination of issues I believe in passionately and had been
working on for years as Children’s Minister and previously in Opposition.
The groundbreaking clauses on shared parenting confirm that
the Government is to press ahead with changes long discussed by my party which
will add a ‘presumption of shared parenting’ to the Children Act 1989. This
delivers on a manifesto commitment Conservatives first made in 2005 and I tried
to carry through with amendments to the Children & Adoption Bill in
Opposition in 2006 only to be frustrated by
the then Labour Government.
Many commentators have lazily referred to the proposed
changes in terms of ‘father’s legal rights.’ It is important to stress though
that this is not about parent’s rights, neither mother’s nor father’s. It is
about children’s rights and expectations and the responsibilities of both
parents to their child.
All sensible people acknowledges that children do best when
they have the fullest possible involvement with both parents either when in a
happy family home or after a parental split. Studies show such children are 40%
less likely to suffer mental health problems, less likely to become teenage
pregnancy statistics and they achieve better at school too. This will not be
the same for every child and it in no way takes away from the fantastic job
that many single parents of either gender do whether they are single parents by
choice or not. But these are the facts.
In over 90% of cases
the resident parent after a split will be the mother. Some fathers will walk
away from responsibilities to their children by choice and need to be pursued.
In the case of a few it may not be safe to remain involved, but for too many their
fervent attempts to remain actively involved during childhood can be frustrated
by a former partner after an acrimonious split. The children become pawns
between warring parents, the court room the combat arena, the taxpayer funds
much of the conflict and everyone loses, not least the children caught in the
middle. At its worst over a quarter of decent parents are completely frozen out
and lose contact with their children within a few years.
Around 90% of separating couples are able to make
arrangements for their children without recourse to the courts though contact
arrangements will often still be problematic. But we need to make sure that
fewer of the 10% who do resort to legal resolution often in very acrimonious
and long drawn out proceedings, do so in the future. I want to see a large
metaphorical warning sign outside of every family court which says that if you
think you can use the court to play winner takes all, to exclude a non-resident
parent out of a relationship with his or her kids altogether, then don’t even
think about it unless there is a welfare threat to the children which can be
clearly demonstrated. Because the presumption is that both parents will be
required and expected to play their full role as parents just as when you had
the children in the first place.
That is what a presumption of shared parenting enshrined in
law is intended to do – keep more warring parents out of court and persuade
more of them to act like adults in the interests of their children earlier on.
It should also be seen in the context of other ‘beefed-up’ upstream measures
such as hard to reject mediation, less access to one sided legal aid and better
enforcement measures when contract arrangements are willingly and often
regularly breached. When you learn that last year there were only 53
enforcement orders and hardly ever will a judge resort to the nuclear option of
transferring residency away from a parent serially frustrating contact, then it
is clear how so many dads feel the system is against them.
Of course there will be opponents to such measures as
attested by other less balanced headlines talking about divorced parents rights
putting ‘victims of violence at risk.’ There are good reasons to keep some
separating parents out of the picture on safety grounds and that is why the
proposals being put forward now are still completely subject to the
‘paramountcy principle of the welfare of the child.’ That will not stop some of
the regular suspects crying wolf despite the fact that I brought all sides on
this argument round the table in the Department for Education when formulating
the basis of the consultation which reported last year.
Opposition may be particularly vociferous in the Lords where
can be felt the influence of a number of retired senior judges who invariably resent anything that treads on the
patently buckled toes of their profession’s autonomy in the court room without
having to be ‘tainted’ by reading what goes on in Hansard. They also need to
justify the huge variations in the way often neighbouring courts deal with
contact arrangements and their breach and not least the amount of time cases
drag on leaving children and non-resident parents drifting farther apart by
Others will point to the Australian experience of shared
parenting which went wrong because it dealt in terms of an ill defined
‘meaningful relationship’ between parent and child and soon got bogged down in
the minefield of equality of time which resulted in more litigation not less.
But as I have stressed this Government’s shared parenting proposals are about
keeping more parents out of court in the first place rather than fast tracking
them into it.
The working and parenting practices of families who toil
hard enough to stay together have changed greatly over recent decades. Fathers
are, and want to be, more involved. The undeniable benefits of shared parenting
for children even after a split haven’t changed. It is time the law caught up
with that, so let’s not miss this opportunity at long last by wallowing too
long in the fall out of the gay marriage debate when there is other important
work to be done for the sake of our children.