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Entries in legislation (8)


Indian Law Commission proposes custody law that promotes shared parenting

The Law Commission of India has just published the results of their recent consultation on laws regarding custody and guardianship of children.  This supports equal legal status of fathers and mothers, giving a significant boost to shared parenting in the second most populous country in the world.

Their conclusions support providing for equal legal status of both parents with respect to guardianship and custody; providing detailed guidelines to help decision-makers assess what custodial and guardianship arrangement serves the welfare of the child in specific situations; and providing for the option of awarding joint custody to both parents, in certain circumstances conducive to the welfare of the child.

The Indian Supreme Court has already said that the welfare of a child is not to be measured merely by money or physical comfort, but the word welfare must be taken in its widest sense so that the tie of affection cannot be disregarded.

The consultation report notes that a number of countries across the globe have adopted a preference for shared parenting systems over sole custody as a post-divorce arrangement with respect to children, and cites the example of Idaho State Code, which states “Except as provided in subsection (5), of this section, absent a preponderance of the evidence to the contrary, there shall be a presumption that joint custody is in the best interests of a minor child or children.”).

The consultation also notes the current situation in Hindu, Islamic, Parsi and Christian religions law.

Of the 125 responses to the India consultation, most were in favour of shared custody, with comments such as "Gender-based stereotypes—e.g., that a girl child should be raised by the mother and a boy child by the father—are outdated. Both parents have valuable contributions to make in the lives of children of either gender".

The Indian Government will now consider amendments to the Hindu Minority and Guardians Act, 1956, the Guardians and Wards Act, 1890 alongside two new bills: The Hindu Minority and Guardianship (Amendment) Bill, 2015 and The Guardians and Wards (Amendment) Bill, 2015.


Law grants custody rights to Swiss fathers

Divorced fathers in Switzerland are now entitled to joint legal custody of their children. Previously, mothers were usually awarded sole custody.
The law, which took effect at the start of July 2014, also allows fathers to apply for custody retroactively if the divorce or separation had taken place within the past five years.
The change in the law means that both parents will have an equal say when it comes to making decisions about the children. However, it does not mean that both parents will share physical custody of their children. The Swiss Parliament had approved a government proposal in June last year, but implementation of the reform was delayed by several months amid concerns by the cantons over an expected flood of requests.
While these new laws represent considerable progress, married and unmarried parents are still teated diffferently and the interests of grandparents, foster parents and other stakeholders are still ignored.
In her speech at the ICSP conference, Swiss family lawyer Anne Reiser suggested that post separation negotiations should be not be conducted like a chess game, in which the outcome is a death or loss for one side.  The strategy game Go provides a more useful approach, in which players compete to get the biggest territory but also make sure that the other party can also live.

Will England and Wales shared parenting law influence Scottish courts?

The newly enacted Children and Families Act has no direct impact on Scottish family law, but even in its severely watered down final form it adds to the pressure for an updating of the Children (Scotland) Act. 

The welfare checklist in the 1989 Children Act now includes a statement about continuing parental involvement:

(2)     In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.

(2A) A court, in the circumstances mentioned in subsection (4)(a) or (7), is  ... 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.

This amendment was diluted considerably as the bill progressed through the House of Commons to remove anything that might risk creating an impression of a parental 'right' to any particular amount of time with a child.  Nevertheless, it lays down a marker.

In the background information produced for the Bill, it was stated that "The Government remains of the view that a legislative amendment will send an important message to parents about the valuable role which they both play in their child's life. As well as helping to promote greater understanding about the way in which court decisions are made, we believe the amendment will, in time, encourage separated parents to adopt less rigid and confrontational positions with regard to arrangements for their children."

This may prompt the English and Welsh courts to be more willing to impose shared care arrangements and it may make parents negotiating in the shadow of the law more likely to agree such arrangements. 

The other change affecting post-separation arrangements is the ending of "contact" and "residence" orders.  Instead, there will be a single order, a "child arrangements order", which deals with the arrangements as to "with whom a child is to live, spend time or otherwise have contact" and "when a child is to live, spend time or otherwise have contact with any person."

This may remove some of the competition to be the "resident" parent. 

A similar change in the Children (Scotland) Act might make some sheriffs more willing to make orders for shared arrangements.  At present there seems to be reluctance in some Scottish courts to make shared residence orders.  


Shared care legislation for England and Wales 

On 4 February 2013, the long awaited Children and Families Bill was introduced to the Westminster Parliament.

Section 11 of the Children and Families Bill sets out a presumption of shared parenting for consideration by Parliament as proposed legislation. It states that family courts are to "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." This change will not apply to Scotland.

The Bill contains a number of other reforms including providing for shared parental leave for both parents which will apply throughout the UK. 


Shared Parenting Bill published

The UK Government has announced that it intends to introduce a 'shared parenting clause' into the Children Act 1989, with the aim of the legislative change being "to ensure that children are able to benefit from a continuing relationship with both parents following family separation".

This change will have no direct effect in Scotland, but FNF Scotland will be suggesting that a similar amendment to the Children (Scotland) Act could be included in forthcoming Scottish Government legislation on Children's Rights.  This would follow the principles outlined in Article 9 of the UN Convention of the Rights of the hild..

This announcement comes in the Government response to the public consultation on co-operative parenting following family separation.