Will England and Wales shared parenting law influence Scottish courts?
FNF Scotland on Wednesday, March 19, 2014 at 4:59PM 
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.
England and Wales, legislation, shared parenting
Reader Comments (1)
Dear FNFS
My own view is that, far from the CFA 2014 moving things forward, it has actually made the situation worse.
I fundamentally disagree with your analysis that the changes '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' - largely because there has been no material change in the law.
When the Government began its consultation on the proposed reforms, it talked about ensuring that both parents should continue to play a 'strong and influential' role in their children's upbringing after divorce or separation. However, a coalition of lone parent charities, standpoint academics, and organisations such Resolution, the NSPCC and Relate ensured that this proposal was scuppered.
What that proposal has been replaced by is direct or indirect 'involvement', with the usual caveat of 'where it is safe to do so'. Far from this laying down a marker, it actually enshrines 'indirect contact' in the Children Act as being a reasonable parent child relationship. In reality, we are in a worse position than before the Review began.
I would also add that because the Government bowed to pressure and dropped its plan to ensure enforcement of s.8 orders, it will be less likely to see an increase in mediated settlements (its stated aim). People will only compromise if there is a level playing field and everyone knows that there isn't.
As for removing competition to be the 'resident' parent, whilst those titles may have been dropped in the CA 1989, the existing social policy framework remains and one parent will still be considered to be the 'resident' parent for child benefit, tax credits, housing, statutory child maintenance and everything else that families may encounter.
I know that many dads (and some mums) have pinned their hopes on the 'reforms' that have now been introduced. Sadly, I fear that the whole thing will change absolutely nothing and many children will continue to be denied a relationship with one of their parents.
Regards, Nick.