Liam McArthur MSP has submitted his amendment on shared parenting for consideration at Stage 3 of the Bill. This debate will be held in the full Scottish Parliament on the afternoon of Tuesday 25th August. Stage 3 amendments still have to be selected for debate by the Presiding Officer.
His amendment is based on the change that was made in Belgian family law in 2006. It adds to the check list of factors to be considered by the court: “in the absence of an agreement on the pattern of residence of a child and at the request of at least one of the child’s parents, the possibility of ordering that the child should reside on an approximately equal basis with each of the child’s parents”.
In the Stage 2 debate it was wrongly stated that this amendment would force courts to make equal care orders and cut across the general principle of the best interests of the child being the paramount consideration. That is clearly not the case – all the court is forced to do is to weigh up the arguments for and against equal care, and then decide what would be best for the child, not the parents.
The important change this amendment will bring is to enable this consideration to take place. At present some sheriffs are very willing to consider shared care, but others seem to disregard it completely. One sheriff made this statement in his note to a recent interlocutor: “The pursuer is looking for a shared parenting arrangement. It is difficult to make shared parenting work. Even with the greatest degree of cooperation between the parties it can rarely, if ever, be sustained in the case of a child of school age, certainly in my experience…”
Talking at the Scottish Parliament Cross Party Group on Shared Parenting, Judge Marie-France Carlier said that: “The main goal of the Belgian law is to benefit the child. The legislation aims to reach this by means of maintaining a relationship with both parents, which is one of the main protective factors for children’s well-being during and after parental separation.”
She explained that since 2006, there has been a huge reduction of parental conflict in the Belgian courts as parents now know what the law says. After separation, lots of them immediately decide to set up joint physical custody before having any court decision.
She commented “This law has made our work as judges easier as we have to respect the law and at the same time we know that the best interests of children is for them the benefit from equal involvement of both parents.”
Similar results have been obtained in other places where the law has been changed in this way. In 2014 Arizona enacted a shared parenting statute, which has been functioning as a rebuttable presumption of equal parenting time. Four years later, lawyers, judges and mental health professionals were asked to evaluate the impact of the law. This research showed that they all viewed the law favourably in terms of children’s best interests and perceived it as having no impact on the level of legal or personal conflict between parents.
Likewise, in Kentucky equal shared time became the rebuttable presumption in custody laws in 2018. The year before the shared parenting law was enacted, 22,512 cases were filed in family court. This number dropped to 19,991 one year after the law took effect and the number of domestic violence claims declined by 445.
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