The Paramountcy Principle and 50-50 Shared Parenting
The principle of 50 – 50 shared parenting is gaining ground
across the world. But how does this
affect the Paramountcy Principle, and what effect will 50 -50 parenting have on
Principle is the principle highlighted by the Children Act 1989. Essentially, it says simply that, whatever
other considerations are in play, the welfare of the child shall be the court’s
paramount consideration. Further, the
case law makes it clear that the longer-term welfare of the child ‘trumps’
short-term considerations so that it is, for example, profitable (for the
child) to enforce contact or change residence if these improve its longer-term
outlook, even if there will be short-term difficulties.
50 – 50 Parenting
usually means there being a rebuttable presumption that, on separation, the
child spend 50% of its time with each parent.
The point is that the presumption is rebuttable
– that is, that where 50-50 parenting is not the best solution for a particular
child (perhaps one of its parents works on an oil rig) the court can make
another order. Also, 50 – 50 parenting
will usually be off the table if one of the parents has been violent or
Conflict or Harmony?
One question that arises immediately here is how these two
ideas ‘fit’. Some people have said that
the Paramountcy Principle must remain paramount and that the court’s hands
should not be tied by a 50 – 50 Order.
Others might argue that the idea of the ‘child’s best interests’ is too
loose of a concept, leaving judges and social workers too much leeway in make
recommendations and Orders.
UKAP argue this as well.
We feel that these two principles ought to be able to
co-exist quite happily. The simple
reason is that, if the ‘best interests of the child’ is too loose a concept,
then 50 – 50 parenting helps ‘tighten up’ the definition.
The Conservative party had an opportunity to introduce 50 –
50 parenting with the Children and Families Act 2014 (helpfully subsumed into
the Children Act). They backed away from
this, when push came to shove, and we got, instead, a meaningless, watered down
amendment to S2 of the Children Act, which says
“(2A)A court, in the circumstances mentioned in subsection
(4)(a) or (7), is as respects each parent within subsection (6)(a) to
presume, unless the contrary is shown, that involvement of that parent in the
life of the child concerned will further the child’s welfare.
(2B)In subsection (2A) “involvement”
means involvement of some kind, either direct or indirect, but not any
particular division of a child’s time.
So, we have a rebuttable presumption that SOME contact from
both parents will benefit the child, BUT that contact can be minimal, even
‘indirect’ – meaning that you can send your kids a couple of emails a week, or,
if you’re really good, a Skype call. So
you go from seeing your child every day, hugging and kissing them, taking them
to school and after-school classes, football practice, doing their homework
with them (for them?!) and all the rest of it, to two emails a week…
Is that justice? Is
that in the best interests of a child that loves and wants to see both of its
parents as much as possible?
Let’s have 50 – 50 parenting now.
Now…there is a small rift here between England and America –
a possible disagreement about where the emphasis of our focus should be. Some in England feel that America has a very
‘rights-based’ culture, and that this is a bad thing. It is a bad thing because perhaps it distorts
and skews society – because ‘rights’ is often a zero-sum game – that is, if you
give rights to one group, you run the risk of necessarily taking rights away
from another. Further, this kind of idea
misses the point – the point being the best interests of the child, not the
rights of either parent.
But 50 – 50 parenting is not about the rights of the absent
parent (typically, but not always the father).
Here is an observation from Annika Saarikko, Finland’s minister of
family affairs and social services. In
Finland fathers spend more time with school-aged children than mothers, to the
tune of eight minutes a day…
“This is a question of gender equality, but it’s more
a question of the rights of the child,” says Annika Saarikko, Finland’s
minister of family affairs and social services, one of six female ministers out
of a cabinet of eleven. “This is not about the mother’s right or the father’s
right – but the child’s right to spend time with both parents.”
This simple observation gives us the way forward. Far from conflicting with the paramountcy
principle, 50 – 50 parenting helps define it.
But let’s suppose we ignore the child for the moment. We agree, don’t we all these days, that women
and men should have equal rights in the workplace. You don’t need to be a feminist to believe
this, merely an egalitarian. And, if you
are an egalitarian, you would presumably agree that men and women should have
equal rights with regard to the upbringing of children.
OK, that’s simple, surely.
Now, let’s re-introduce the child into the equation. Let us consider all of the ways that 50 – 50
parenting (which we have already established is fair between the parents) might
harm a child. It is hard to imagine a
lot of situations where the fact of a child seeing both of its parents equally
is going to harm the child, isn’t it?
The only obvious one really is if one of the parents is
abusive, and here we have to consider the position pre-separation. Did the parents have roughly equal, and
plentiful contact with the child pre-separation? It is difficult to imagine then, that one of
these parents developed these abusive tendencies at the precise time of the
separation, absent some kind of psychotic breakdown. One look at the case law shows us that false
allegations against absent parents are made as a matter of routine, by
narcissistic-toxic parents that are seeking to exclude the other parent from
the child’s life. Further, we know that
judges hardly ever seem interested in these allegations, precisely because of
UKAP is of the view that ‘the child’s best interests’ is too
woolly a concept and leaves far too much interpretation in the hands of a
system that simply will not got the message that both parents matter. A rebuttable presumption of 50 – 50 parenting
will give ‘the system’ a big, much-needed clue about what exactly the child’s
best interests ought to look like ‘on the ground’.