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Entries in shared care (7)


Tribunal clarifies how shared care is decided in maintenance disputes

A recent Upper-tier Tribunal decision has clarified the position in child maintenance cases where both parents have equal amounts of child care.

The father in this case had been assessed by the Child Maintenance Service to pay weekly maintenance  because he cared for his child for 175 mights or more, even although there was an agreement that care should shared equally. The First Tier Tribunal agreed with this and also decided that because there were a number of nights when the child was in the father's care but did not stay at the father's address, this reduced his care to 172 nights, which meant it fell below the 175 nights threshold that would have halfed the maintenance liability.

The Upper Tribunal ruled that both aspects of this decision were wrong. The First Tier Tribunal had became unduly preoccupied with care proveded "overnight" as opposed to the "sharing of day-to-day care". In doing this it had failed to apply regulation 50 of the 2012 regulations, which sets the parameters for determining whether a parent is considered to be sharing care or is deemed to be non-resident and therefore liable to pay maintenance. 

Although regulations 46 and 47 relate to calculating the number of overnights in cases where care is not shared, the Upper Tribunal ruled that they should only be applied if the parent is being considered as non-resident under regulation 50.  In this case the agreement or court order for shared care meant that overnights didn't need to be calculated. Overnight care is not a trump card but is one factor to beconsidered along with others.

The Tribunal judge also commented that for overnight care to count it is a requirement that the child stays at the same address as the non-resident parent, but that need not be restricted to that parent's usual address.


"Family Breakdown" - the book review

After all the pre-publication sound and fury about Penelope Leach's new publication "Family Breakdown", I have now had a chance to read the book itself.  The initial concerns on her statement about no overnights with separated fathers have echoed round the world's press over the past week, and I still find it incredible that someone who is trying to influence both mothers and fathers should take a stance that alienates half her audience.  This isn't helped by her frequent use of the term "absent parent" - even the Child Support Agency has changed to less loaded terminology.

Trying to tell people to behave better after separation is never an easy message to communicate, and it doesn't help if you succeed in antagonising all those fathers who want to continue their hands on approach after splitting up. 

Reading this book is an intensely frustrating experience.  Every so often Penelope Leach raises issues and presents case studies which are very familiar to me from  talking to the fathers who contact FNF Scotland.   Some parts of her discussion of false allegations, parental alienation, concerns about your ex-partner's behaviour and the importance of involved fathers wouldn't be out of place in a Families Need Fathers factsheet.

The book's sub-title "helping children hang on to both parents" gives a clue that it isn't as anti-father as one might fear, but time and time again this even-handed approach is disrupted by sweeping statements on shared parenting that are supposedly backed by recent research evidence. 

The end of the book lists 32 references, of which about 12 appear to be peer reviewed research papers, but very little attempt is made to link these statements in the main text to the actual research finding on which they are based.  Text in coloured boxes is usually referenced, but when you go back to source for one of the key authors (Dr Jennifer McIntosh) it is somewhat alarming to read the comment at the end of her paper "In considering the empirical findings about infant outcomes in parental separation, one needs to bear in mind that this field of research is also in its infancy, and is subject to problems with interpretation."

Family Breakdown ignores the fact that we have a separate legal system in Scotland, so her statement that legal aid is no longer available for family cases holds good only for England and Wales, and her account of court processes is similarly restricted.

In amongst the dire warnings about shared care, this book contains some wise advice for separated parents, but the didactic approach gravely damages its usefulness.  It is supported by a new pressure group Mindful Policy, which promotes attachment theory, and should therefore read as an expression of that viewpoint rather than an impartial guide.

Ian Maxwell

For further comment on this issue see the blogs by Karen Woodall and ExInjuria .


Research study supports overnight shared care for children under four

DR Richard WarshakA comprehensive review of research conducted by Richard Warshak stresses the importance of young children staying overnight with both of their parents after separation, contradicting the view that young children should only have daytime contact with the non-resident parent.  This paper is supported by 110 reserchers and practitioners.

Two central issues addressed in this article are the extent to which young children’s time should be spent predominantly in the care of the same parent or divided more evenly between both parents, and whether children under the age of 4 should sleep in the same home every night or spend overnights in both parents’ homes.

A broad consensus of accomplished researchers and practitioners agree that, in normal circumstances, the evidence supports shared residential arrangements for children under 4 years of age whose parents live apart from each other.

Because of the well-documented vulnerability of father–child relationships among never-married and divorced parents, the studies that identify overnights as a protective factor associated with increased father commitment to child rearing and reduced incidence of father drop-out, and the absence of studies that demonstrate any net risk of overnights, policymakers and decision makers should recognize that depriving young children of overnights with their fathers could compromise the quality of developing father-child relationships.

Sufficient evidence does not exist to support postponing the introduction of regular and frequent involvement, including overnights, of both parents with their babies and toddlers. The theoretical and practical considerations favoring overnights for most young children are more compelling than concerns that overnights might jeopardize children’s development.


Asking the questions about the role of fathers

Why do mums stay at home and dads go to work? Why do some women treat men like idiots around babies? Where are all the ‘new fathers’ we hear so much about?

This new book from Gideon Burrows suggests answers to the above questions and explores the facts and myths surrounding the role of fathers.

Although it is written from the viewpoint of shared parenting within an intact relationship, it raises interesting questions for those who are trying to make shared parenting work after separation.  They will certainly challenge one of his statements - that most men just don't want to look after children.

In his introduction Gideon states: "This book aims to show parents the how and why of a fairer parenting deal. I hope it provides inspiration to those who would like to do it, evidence for those who need to be convinced it is right and possible, argument for those who aren’t convinced it’s a problem, and practical ideas for those who just don’t know how to do it."


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.