I read on Monday that a Ministerial Working Group is to be set up in England and Wales to decide how the Children’s Act 1989 needs to be amended to rewrite the law in an attempt to ensure that fathers get “improved access” to their children after a marriage breaks down. The article indicated that currently Family Courts decide to leave children with their mothers in the vast majority of divorce cases. 
The content of the article brought to mind the key note address by Justice Peter Boshier, Chief Justice of the Family Court of New Zealand at the 17th Annual Four Jurisdictions Conference in Liverpool on the weekend of 3/5 February 2012. I listened with interest to his description of the current family law court system in New Zealand and also to the possible changes which the system may face. Some of the statistics provided by him made for very interesting reading in light of the comments in the article which imply that the courts make decisions to leave children with their mother and restrict the time with their father after hearing an application by both parents.. The New Zealand statistics highlighted the fact that the majority of the court judgements whereby the mother was given a greater amount of time with the children were in fact consensual. In other words that the parents agreed that that is what was best for their family. 
I do not have experience of how matters are dealt with in England but it is in my experience in Scotland now very much the norm for courts to consider shared care arrangements where both parents contribute substantively to the day to day parenting of their children following upon their separation albeit that that may not be on an equal basis.
Having practised family law for over 20 years I have seen the approach taken by the courts in Scotland alter greatly. When I first dealt with these cases shared care was something which was regarded as unusual and frequently not in children’s best interests. Children at that stage were indeed principally left with their mother who was given custody and the father given access. The Law changed in 1996 when the terms custody and access fell by the wayside. In their place we acquired residence and contact. The approach improved but we were still left with a system which involved parents being given two different remedies, with the person who had the greater amount of time with a child being granted residence.  In listening to the address by Justice Boshier I found it interesting to hear that the New Zealand approach in is often to grant parenting orders to both parents rather than differentiating between residence and contact orders.
I personally feel that that is an approach to be recommended. In most cases children continue to be cared for and supported by both their parents. The quality of that support is what is important and it is in my view often unhelpful and damaging to family relationships to focus on exactly how many nights each week the children spend in each household. I also believe that it is appropriate that that shared responsibility is reflected in the name given to the court order granted and that it is entirely sensible that the same term is used for both parents.
If you have any family matters that you would like further legal advice on, please contact 0131 200 1238 or email me.