The Children and Families Bill 2013 - new shared parenting rules

The Children and Families 2013 Bill was recently introduced to the House of Commons, and if passed will come into effect in England and Wales in 2014. The bill covers several important areas of child welfare, including adoption, shared parenting and special education needs.

Most important for those involved in long running disputes about arrangements for their children  or those intending to divorce or separate  is the proposed legislation surrounding shared parenting and the conduct of court cases concerning children.

Many parents feel that the law favours one side over the other and encourages unnecessary divisions within families beyond those created by divorce.

The government hopes that the new legislation being discussed will strengthen the law to ensure that parents and children are able to maintain a relationship with each other after a separation, as long as the situation is safe and in the child’s interest . It is believed that the measures proposed will encourage divorcing parents to resolve their differences through mediation or out of court agreements, and to work together to agree on care arrangements that involve both parents.

Current legislation

If an application to the court is made then a judge can decide with which parent the child should live (or a shared residence order can be made).  A contact order can also be made setting out the frequency and amount of time the child should spend with each parent. With the proposed changes in place, ministers hope that the emphasis will be on the quality of time spent with each parent rather than the quantity of time, to ensure that the child has a meaningful relationship with both parents.

As it stands the courts always encourage parents to reach an agreement themselves where possible, but if this cannot be achieved then the Welfare Checklist, set out in the Children Act 1989, must be used to aid the court in deciding what arrangement is in the child’s best interests. If, prior to separation, the child was cared for primarily by one parent (this can be either the father or the mother), there would need to be a very good reason for the court to order the child into the primary care of the other parent.

In order to assess how the child/children’s best interests will be served, the  judge will go through the Welfare Checklist which specifies that the following must be considered:

  • The wishes and feelings of the child concerned in view of their age and understanding
  • The child's physical, emotional and educational needs
  • The likely effect on the child of any change in circumstances
  • The child's age, sex, background and any other characteristic that the court considers relevant
  • Any harm the child has suffered or is at risk of suffering
  • How capable each of the child’s parents and any other relevant person are of meeting the child's needs.
  • It is hoped that the new legislation being drafted would reduce the need for courts to intervene and minimise the impact on the child.


How it would change

The government is proposing to introduce measures which will ensure that children and parents are able to maintain relationships and where possible to work together on shared parenting for the benefit of the children involved. When you consider that 85% of all divorcing couples in 2011 had children under 16; this shows how large a proportion of families going through divorce could be greatly affected by the proposed legislation. 

Effects on children

Some experts worry that the new legislation could put children at risk, if abusive or violent parents are given contact with the family.

Anne Hurst, spokeswoman for Maypole Women, an organisation that supports women through divorce, said:

"The proposed change will increase children's exposure to conflict and abuse, increase economic inequality, and create no incentive for fathers' increased involvement from their child's birth.”

"Children who actively reject a parent – either the abusive or non-abusive parent – usually do so in a context of high parental conflict and domestic abuse. Cutting off contact can be a response to alienation tactics, or a coping mechanism."

Is shared parenting in the child’s best interests?

Divorce is always a difficult process for parents and children. As well as the emotional distress of the relationship breakdown, the couple need to cope with the guilt and complications of dramatically changing the life of their child or children. Ensuring children are fully supported during the process and working with each other to agree an arrangement for the children that is in their best interests will help minimise their distress and prevent long lasting emotional damage.

This guide has been provided by Pannone LLP; You can find further reading on their family law blog