In her column in Family Law last week Sandra Davis took issue with MP Brian Binley over his Shared Parenting Orders Bill:
"Mr Binley's rationale is that "very often Court Orders are made without the knowledge of the importance of a father's involvement and [his] bill will make sure that neither parent is shut out from a child's life when sadly a relationship breaks down."
I'm afraid Mr Binley is wrong on both counts."
On the first count she says: "In over thirty years of practice I cannot recall a single case in which an order was made concerning the upbringing of a child in ignorance of the father's role in that child's life." I agree with her, but in my twenty-five-odd years of practice I also witnessed many cases where at the outset one party - usually the mother - has the children with them and attempts to dictate terms to the other party from what they consider to be a position of strength. From that point on, the other party is fighting an uphill struggle to get what they and, more importantly, the children are entitled to. Many fathers simply give up part way through that struggle. Even the court has its work cut out persuading the mother to give ground, and a 'weak' court may even bow to the wishes of the mother.
On the second count Ms Davis appears to be making the point that I've heard before as an argument against a shared parenting presumption, i.e. that it treats children as if they are their parents' possessions. However, with a shared parenting presumption (and I'm not talking about any new type of shared parenting order here, as seems to be envisaged by the Bill) the end result in a fully contested case, decided as now by the same paramountcy principle and welfare checklist, may not necessarily be very different from the result under the present law. My hope, however, is that far fewer cases would go 'all the way'. If parents understand at the outset that the law will treat them both equally, then surely many more cases will be settled early.
That said, I do also agree with Ms Davis's final paragraph:
"No amount of legislation can enhance the life prospects of the children of parents who can not or will no[t] co-parent effectively. Court orders can do many things, but they can not compel intransigent mothers and fathers to become better parents."