HLE blogger Guy Skelton examines the lessons from Australia on shared parenting after divorce
The recent government response to the Family Justice Review has at its centre an entitlement to a legally binding presumption of shared parenting. Legislation in favour of shared parenting would represent the greatest change to the Children Act since its creation in 1989. Arguably, the proposal represents a levelling of the playing field, addressing a perceived imbalance in the treatment of parents post-separation. However, to some it is a legislative minefield detracting from the primary consideration—the child.
Prior to the government’s response, David Norgrove, author of the independent Family Justice Review, stressed that the current law should not be changed, citing the difficulties encountered under Australia’s shared parenting laws. Despite the recommendation of the independent review, the government believes that legislative change offers the best protection for families in England and Wales.
But which elements of the Act would the government seek to amend? Many organisations, including single parents’ charity Gingerbread, share Norgrove’s concerns—that the government must learn from the fallout of the Australian amendments and not legislate in haste.
Under Australia’s Family Law Amendment (Shared Parental Responsibility) Act 2006, the court begins with the principle of equal division of custody. The presumption may be rebutted “by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child” (s 61D(4)). The second key feature of the amendments was the explicit statement that shared parental responsibility creates obligations to share decision-making (s 65DAC(3))…”
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