Shared Parenting Scotland has submitted our response to the Scottish Parliament Justice Committee in connection with their consideration of the Children (Scotland) Bill.

While agreeing with most of the measures in the Bill, we have proposed a range of other matters to be included, and feel that the Bill and the accompanying Family Justice Modernisation Strategy are "a missed opportunity to do a lot more to guide sheriffs and judges in the difficult task of deciding what is in the best interests of a child when the parents can't agree."

Our submission notes that the current legislation includes a partial check-list of factors that the court should take into account when making these decisions.  We suggest that the Bill should be amended to include a presumption of shared care when deciding where children should live, on the grounds that equal care is usually in the best interests of children.  Courts could take this as a starting point, but would be free to order other arrangements if necessary.

We also argue for explicit mention of the need for to see grandparents, and we suggest that the naming of court orders should remove the terms "contact" and "residence" as they risk leading the parent who receives a residence order from wrongly assuming that gives them overall control of all arrangements for their children.

The Bill introduces welcome changes for taking the views of children, but we suggest a note of caution should also be included, so that the court allows for the risk of undue influence and parental alienation when considering the views of children who are rejecting a mother or father with whom they previously had a close relationship. 

We also suggest that the range of methods for children giving views should be extended, and that any sheriff who talks to children should receive training in this process, as happens in German courts.

We propose that court orders regarding children seeing a parent should be enforced in different ways, and that the Bill should include a far stronger statement on the importance of courts reaching quick decisions to resolve disputes about contact.

Our call for an extended check-list including these elements is also mentioned in a newly published piece of research from Dr Lesley-Anne Barnes Macfarlane of Edinburgh Napier University.  Her report "Balancing the Rights of Parents and Children", mentions the list included in the UN Convention of the Rights of the Child General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1). 

At point 60 it notes: "Preventing family separation and preserving family unity are important components of the child protection system, and are based on the right provided for in article 9, paragraph 1, which requires “that a child shall not be separated from his or her parents against their will, except when […] such separation is necessary for the best interests of the child”. Furthermore, the child who is separated from one or both parents is entitled “to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests” (art. 9, para. 3). This also extends to any person holding custody rights, legal or customary primary caregivers, foster parents and persons with whom the child has a strong personal relationship."

And at point 67 it states: "The Committee is of the view that shared parental responsibilities are generally in the child's best interests. However, in decisions regarding parental responsibilities, the only  criterion shall be what is in the best interests of the particular child. It is contrary to those  interests if the law automatically gives parental responsibilities to either or both parents. In  assessing the child's best interests, the judge must take into consideration the right of the  child to preserve his or her relationship with both parents, together with the other elements relevant to the case."

In an opinion article published in the October Journal of the Law Society of Scotland, Ian Maxwell from Families Need Fathers Scotland comments on the recently published Children (Scotland) Bill.

"We are not alone in commenting on the shortcomings of this new legislation" he comments.  Our aticle says that it is a missed opportunity to transform Scottish Family Law into a world-leading position.  We suggest a change in terminology to remove the labels "residence" and "contact" from court orders as they tend to reinforce the mistaken opinion that one parent is in control.

We also suggest that the Bill could guide sheriffs and judges to take a different starting point for allocation of parenting time.

A rebuttable presumption of shared care was introduced in Belgian family law in 2006 and has led to about 50% of court orders being made for shared care. Setting the starting point doesn't remove the power of the sheriff or judge to order any appropriate division of time the child spends with each parent according to safety and suitability.

It does mean that the full involvement of both parents is taken seriously and moves the process away from the pursuer/defender battleground if both are capable and loving parents and their children have equal expectations of both.

A study by sociologists at the University of Zurich shows that increased equality has a positive effect on mothers and fathers.

Thanks to greater freedom to strike an individual balance between caring for children and working in paid employment, mothers and fathers today are happier with their lives than parents were 20 or 30 years ago.

The researchers investigated what effect these changed societal expectations have had on the life satisfaction of mothers and fathers. For their empirical work, they evaluated data from the long-term study of the Socio-Economic Panel at the Institute for Economic Research Berlin (DIW), which are representative for Germany. It contains data on more than 18,000 women and almost 12,000 men who were surveyed between 1984 and 2015.

“While in the last few years the prevailing message in the media is that modern parents are under great stress or even regret having become parents, our analysis shows the opposite,” says first author Klaus Preisner.

The greater freedom of choice and the increased equality of mothers’ and fathers’ roles has been encouraged – and in some cases even made possible at all – by modern policies for families. Parental leave enables mothers and fathers to share childcare responsibilities and to be involved in their children’s upbringing.

In addition, subsidized childcare outside the home, such as it exists in Germany, also makes it easier for families to combine parenthood and employment. Klaus Preisner also sees another advantage: “These family-friendly political measures are not only significant for equality between the sexes. They are just as important for their role in improving life satisfaction of parents and thus ultimately of children.”

Klaus Preisner, Franz Neuberger, Ariane Bertogg and Julia M. Schaub. Closing The Happiness Gap: The Decline of Gendered Parenthood Norms and the Increase in Parental Life Satisfaction, Gender & Society. August 27, 2019

Imagine if you were prevented from seeing your own children.

Not because you’d done anything to justify it.

Not because you didn’t love and care for them deeply.

Not because you weren’t around for them.

Imagine that you had separated/divorced and your former partner wanted to eradicate you from your children’s lives.  Wanted to punish you for being an ‘inadequate wife/ father’.

A former partner who speaks badly about you to your children. Who makes them think you don’t really care about them. Who makes them ’reject’ you.  Someone who twists your words and distorts the narrative to make your precious children lose their close attachment to you.

If you think it isn’t possible...know this.

There are thousands of parents in Scotland (both mums and dads) living this torture right now. Today. Every hour.  Many understandably can’t take it anymore and give up.  Some take their own lives.

Many more have spent thousands fighting through courts to regain some access, only to have their contact orders breached again. And again. And again.

Fighting only to have an opportunity to co-parent. Just to love and see their own children and play a part in their lives.  Everything most of us take for granted.

If you know anyone in this dark place right now, please ask them to complete the strictly confidential survey below.  These results are being shared with MSPs as they consider changes in family law and court processes.  (Note that some of the options in question 8 do not apply in Scotland - use the Other option to describe the stage you are at.)

Every story heart-breaking. Every story demanding a speedy resolution.

Please help

www.surveymonkey.co.uk/r/6HNLKRN