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The Shared Parenting Agreement By Simon Clayton
June 28th 2006 - Landmark Court Ruling - Anonymity no longer automatic! - Times Appeal Court - Father Simon Clayton - ITV Interview Video |
Shared Parenting Agreements Further advice available: 079 7979 7190
Shared Parenting Agreements (this document is under gradual development and will be improved over time) Download the Shared Parenting Agreement word.doc (58kb)
Below is set out an ideal conclusion to a child custody case should the parents end up in the courts – the making of a “Shared Parenting Agreement”; or if parents have not gone to court then it is an ideal agreement they may make between themselves in any event. My belief is that if there has been friction between the parents deciding who the child(ren) are to spend their time with then there are two essential factors in developing the best possible way forward that is most likely to ensure permanent peace:
1. That a lot of time be set aside to negotiate all issues. This should probably be over months rather than days – start with the basic issues and gradually add in supplementary matters as the main issues are agreed.
2. If things have been at all touchy then try to have the final agreement put into writing – it may even be appropriate to have signatures witnessed at a notary. There are other possible ideas in this respect such as have matters signed and sealed with a mediator or if you must a lawyer approved under the new “collaborative law” scheme. Families Need Fathers – a DCA approved organization - does not recommend using a lawyer.
This agreement
focuses on the principles that may best be adopted for the whole of the child’s
minority, though later on arrangements often become more fluid as the child
develops autonomy and may be more able to revolve between homes independently. A detailed checklist of many potential issues that parents embarking on permanent shared childcare may usefully consider prior to making their agreement is to be found in the DFES guide “Parenting Plans/ Putting Children First” http://www.dcsf.gov.uk/consultations/downloadableDocs/planner_draft.pdf
NB the 2002 version of the “Parenting Plan” (produced by the Lord Chancellor’s office), no longer available online, is a more useful document. For a copy apply to above number or email me simonclayton@post.com
However the UK authorities have traditionally been quite resistant to supporting shared parenting and thus have not researched matters properly and much clearer advice is available from other organizations that work in a more focused fashion with those seeking or conducting Shared Childcare from whom more realistic and clear advice may be available on the best matters to retain focus upon during the negotiation period. For example Families Need Fathers have much experience gleaned from dealing with parents (of both sexes) and sometimes courts, obtaining feedback on the reality of Shared Care – the benefits and occasional sticking points.
Shared parenting / shared childcare may be described as any arrangement where the child may revolve between homes and where there is at least one third residence averaged over a year in both homes.
Establishing Equality in the amount of time a child will spend between homes is an important principle – if either parent feels that they wish this to be so then it will always be a point of contention if the other resists. Thus if there can be agreement on this key issue it is likely that the overall relationship between the parents will improve once this key stressor is negotiated and true equality in terms of time with child is accepted as one overriding principle the parents will try to incorporate into the future.
We are not talking “equality” for equality’s sake (even though that in itself may well be arguable in 2006). It is more a case of when, as is usually the case, both parents feel great love for their children and hugely enjoy and delight in them, and wish as full a family life as possible with them, then a key stressor between the parents is just having enough time with them – time to enjoy home and family life at its fullest and time to also be involved in their educational and other development. And any stressor in the parental psychology is bad for the child. If both parents want to maximise the time they are with their child(ren) then simply the surest way to remove that stressor is by each parent having the maximum time with reference to the other in the fairest manner which is (approximate) equality in time - perhaps averaged out over the year.
Patterns of alternating between homes vary – some parents chose alternate weeks in full, others prefer other patterns, for example: Alternate weeks: Week 1, Friday school pickup to Tuesday school delivery; Week 2, Monday school pickup to Thursday school delivery.
Full, equal parenting / shared care is quite feasible where both parents live within a reasonable commute from school if both parents are available to organise a child getting to and from school (or the “on duty” parent at any time when they are on duty according to their agreed schedule). Around 45 minutes travelling to the school may probably be considered a maximum that could be argued in a court as viable from the child’s point of view – most children are able to cope with such a commute – it is often actually good “quality time” – a time to chat/ listen to music or educational material, etc.. There are legal precedents (2006) to support a parent in shared care arrangements if previously the distance was too far but then the previously “non resident” parent moves closer to the school for the purpose of having more child residence time.
For pre-school children, again shared childcare should be quite accepted – by society, the courts and any other interested faction. It is certainly feasible. My daughter, Esti, lived equally between two homes quite happily more or less straight away when we separated when she was only just 1 ½ years old.
Court Solution: If in court: both parents consent to the discharge of all previous orders and the subsequent withdrawal of all applications for orders under the Children Act 1989 on the basis of agreeing the concept of a shared parenting agreement and plan and acknowledging the importance to the child of the matters set out in the Second Schedule of the agreement below. Though lawyers and CAFCASS resist such there is a legal precedent that this is a good policy and can work even in “high conflict” cases.
Note June 06: The following I had earlier published, I could not then say it was adapted from my own case. I had just re-worded it a little but had to also not identify it – that law is now changed.
In our case Anthony Kirk QC and I literally started from scratch – tear up the “rulebook”; “draw the line” entirely; design from scratch the very best shared parenting plan from the roots up; and in Anthony’s excellent representation to Justice Hedley he said we wished to dispense with the dehumanizing terms such as “residence” and “contact” rather using more human words. The wording we chose in the plan was pored over for a long time to try to do just that.
Over the last week, talking to many senior journalists from quality papers, all have seen how important the ideals are we are focusing on in Esti’s “Bill of Rights” at Schedule 2 of the agreement below. Indeed if everyone followed those principles, clearly so much unhappiness across the board, and time wasted in litigation, would dissolve away.
FIRST SCHEDULE
The Shared Parenting Agreement for the Child
The mother and father both:
(a) Respect the fact that they have and will continue to have a joint and equal parental responsibility for the child
(b) Acknowledge that the child has been looked after by them jointly under a "shared care" arrangement.
(c) Recognise the importance of these "shared care" arrangements continuing and commit themselves accordingly to such arrangements throughout the child's childhood.
(d) Support the principle that the child shall spend time approximately equally in both homes.
(e) Understand the need for agreeing times, days and dates as early in advance as possible when the child is to spend time with them during school holidays to include half term holidays.
(f)[example – enter own pattern, if aiming for alternate week residence Friday after school is felt to be a good natural starting point if circumstances allow] Agree that during term time the father will collect the child from school on a Friday afternoon to spend time with him until the following Friday morning when he will take the child back to school. This is to happen on alternate weeks during term time, the balance of the child's time being spent with the child's mother. The parents both agree to keep these arrangements under review.
(g) Agree that the school holidays, to include half term holidays, will involve the child sharing the child's time as near equally as possible between their respective homes with times, days and dates of collection and delivery being agreed as early in advance as possible.
(h) Agree to share the arrangements for the collection and delivery of the child between homes.
(i) Have decided that when the child is spending time with the one parent, the other will encourage the child to telephone that parent at a reasonable frequency being some two to three days.
(j) Acknowledge that as matters stand the child should stay at her present school. If either parent wishes to consider a change of school then he/she will, for the child's benefit, enter into a constructive discussion of the matter with the other parent with a view to forming a consensual position.
(k) [if an issue – certainly establish feelings on foreign travel] Agree that unless specifically required for the purposes of travel abroad the (……..) will retain the child's passport, the same to be delivered to (……..) by the (……..) following each and every holiday that (……….) may take abroad with the child.
(I) Acknowledge the need to share as equally as possible any incidental costs/extras arising as a result of the child's school attendance and shall do so in the spirit of open and efficient exchange of information as to such costs/extras.
(m) Recognise the need for flexibility in the above arrangements for shared care such that any agreed variation in the time spent with one parent is properly compensated.
SECOND SCHEDULE
The parents agree to provide an environment for the child that incorporates the following principles; the child shall benefit from:
The knowledge that the child's parents' reason to divorce is not the child's responsibility and that the child will be parented equally
Treatment as an important person with unique feelings, ideas and desires and not the source of arguments between parties
A continuing relationship with both parents and freedom to receive love from and express love for both parents
The expression of love and affection for each parent without having to stifle that love because of fear of disapproval by the other parent
Continuing care and guidance from both the child's parents
Being given honest age appropriate answers about changing family relationships
The knowledge and appreciation of what is good in each parent without denigrating the other
A relaxed and secure relationship with both parents without being placed in a position to manipulate one against the other
Being able to experience regular and equal shared parenting and know the reason for any future cancellations or curtailment to the child's normal pattern of living with both parents
*****
Note: The above schedule 1 and 2 are taken from the written public judgment– very slightly adapted, from a recent court case in the UK High Court that has become one legal precedent in respect of shared parenting and where the most senior judges have acknowledged that it is a “useful template”. This approach has been accepted as useful being written up in, for example, Jordan’s Family Law Review (The Bible for family lawyers and judges).
The “Second Schedule” is taken from a court case in Texas, US, where such an approach and written agreement was first developed and was referred to as the "Child's bill of Rights". The late Ian Mackay, Families Need Fathers most experienced lay legal advisor, found this case and got me to add it to our agreement.
This was created by Simon Clayton
Input into the Shared Parenting agreement sched 1+2 came from Anthony Kirk QC in July 2005. He is the Chairman of the Family Law Bar Association (i.e. the country’s most senior family law barrister).
A good set of guidelines as to some common points of confusion in conducting shared care are found in the following Court of Appeal case:
Leading Legal Precedent
A v A FAMILY DIVISION [2004] EWHC 142 (FAM)
Annexe from the end of that public judgement in the Appeal Court setting out actions that may not or may need consultation when a child resides between parents:
Decisions that could be taken independently and without any consultation or notification to the other parent.
-How the children are to spend their time during contact -Personal care for the children -Activities undertaken -Religious and spiritual pursuits -Continuance of medicine treatment prescribed by GP
Decisions where one parent would always need to inform the other parent of the decision, but did not need to consult or take the other parent’s views into account.
-Medical Treatment in an emergency -Booking holidays or to take the children abroad in contact time -Planned visits to the GP and the reasons for this
Decisions that you would need to both inform and consult the other parent prior to making the decision.
-Schools the children are to attend, including admissions applications. With reference to which senior school C should attend this is to be decided taking into account C’s own views and in consultation and with advice from her teachers.
-Contact rotas in school holidays -Planned medical and dental treatment -Stopping medication prescribed for the children -Attendance at school functions so they can be planned to avoid meetings wherever possible -Age that children should be able to watch videos. ie videos recommended for children over 12 and 18.
Shared Parenting Agreements Further advice available: 079 7979 7190 Download the Shared Parenting Agreement word.doc (58kb)
© Simon Clayton Jan 2009 Other Pages of interest:
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