Since the Children (Scotland) Act 1995 came into force over 20 years ago we have had the concept of equal rights and responsibilities for parents.
Those “equal” rights, however, only applied to married couples, and to all mothers. Unmarried fathers had no automatic rights and either had to apply to the court for them or could have them bestowed upon them by the mother. At the same time we moved away from the concept and terms of “custody” and “access” to the more modern and inclusive (or so we thought) “residence” and “contact”.
The difference intended was that “custody” conferred more power and rights than access; for example, the custodial parent could more or less make all the important decisions about say, education and/or religious upbringing single-handedly whilst the parent with access only had the right to spend certain periods of time with their child. The change to the concept and terminology of residence and contact was supposed to underline the equal rights mentioned above. Yes the child/ren may still spend significantly more time with one parent than the other, but the decision making power imbalance was supposed to shift. And it did to a certain extent. We lawyers got better at viewing things through that prism, judges and sheriffs had to be careful in making decisions to start from that position of equality, and most importantly from the best interests of the child.
From the public’s perspective though, it has been a slow journey. Even now we get enquiries from parents wanting “custody” or seeking “access”. In 2006 the law changed again in another shift towards “equality”. Now equal rights applied to all parents so long as they were named on the birth certificates – a victory for unmarried fathers? Still the power struggle continues though and despite the “best interests” principle far too many cases are still making their way through an overloaded court system taking far too long and costing far too much.
In England, the terminology has changed to “child arrangement orders”. Maybe this is better than the still emotionally loaded “residence” and “contact” but most children talk about the “time they spend with….”. In terms of any review of the law in Scotland this sort of terminology may better reflect reality, be more child-centred and reflect a move away from the power imbalance that often still exists. In cases that come across our desks that power imbalance is frequently present in many guises: financial sophistication, who has been more involved in looking after the children, in articulate communication and so on. Divorcing couples are often scared and defensive – will they have enough money to live on; will their children be taken from them? Stereotypically, in terms of gender, husbands may hold the financial upper hand and wives may become overly concerned about time the children spend away from them.
Neither serves the children’s needs, and skilful and sensitive intervention can be of massive assistance to allow people to see a more positive future. We have much to learn from our Scandinavian cousins where shared care is very much the norm, and where data backs up the fact that, other than a conventional nuclear family, this equal shared parenting is very much the best option when considered against markers such as poverty, criminal behaviour, educational achievement, and mental and physical health. Critically, however, this framework of equal shared parenting is supported by a society where both men and women work broadly the same sort of hours, where equal parental leave is not only available but is expected to be taken, and where good social security provision and affordable childcare allows both parents to share in the physical care of their children, and not to be financially dependent on each other for maintenance payments.
Wider change than mere terminology is going to be required before true equal shared parenting is likely to be the norm.
Contributing Advisors
