Although the presumption of parental involvement does not extend to a presumption of equal (or 50/50) care in England and Wales, there remains a great deal of debate about this issue, especially given the different approaches across jurisdictions. Is 50/50 care a good idea? How can family lawyers advise whether it is appropriate in a particular case?
When a relationship breaks down, it is open to the child’s parents to make an application for the court to determine the child arrangements. From the court’s perspective the child’s welfare is paramount and the checklist in section 1(3) of the Children Act 1989 will be applied. Since the Children and Families Act 2014 came into force, these applications are underpinned by a presumption that, unless the contrary is shown, the involvement of a parent in a child’s life will further that child’s welfare.
In England and Wales, any child arrangements determination should be approached as two separate stages. First, the quantum of time that the child will be with each of the parents and the configuration of the same. Second, the appropriate terminology or label for that arrangement (that is, whether the child arrangements order should stipulate that the child lives with one parent and spends time with the other, or lives with both parties).
It is understood that the absence of a 50/50 division of time starting point is not an internationally consistent approach. In England and Wales, the Family Justice Review Final Report of November 2011 expressly recommended against 50/50. Further, reference to a ‘shared care arrangement’ or use of the label that a child shall ‘live with’ both parents does not necessarily mean an equal (or 50/50) division of time.
By contrast, in Australia, for example, the Family Law Act 1975 specifically requires the court to consider whether the child spending equal time with each parent is in their best interests and is reasonably practicable. In 2018, the US state of Kentucky passed the Kentucky House Bill 528. This created a rebuttable presumption (as a starting point) that equal shared parenting time and equal decision-making powers are in the child’s best interests. Equal shared care is not uncommon in France – the concept of garde alternée often sees an alternating week arrangement – and in Belgium the court must consider equal shared care where it is requested by a parent. Many other jurisdictions take a very different approach still.
Arguably, 50/50 shared care is like Marmite – some parents and tribunals love it whereas others hate it. Some separating couples agree to an equal arrangement voluntarily. Others may have it imposed upon them by the court against their wishes. In the latter scenario, whether or not it is in the best interests of a child will depend on the specific facts of a case. There are no hard and fast rules – ‘the court’s powers are broad’.
Common 50/50 arrangements can be configured in a plethora of ways. The more common arrangements include: (1) week on/week off; (2) an arrangement by which Monday and Tuesday nights are with parent A, Wednesday and Thursday nights are with parent B each week, with weekends (Friday to Monday) alternating; and (3) the arrangement referenced at (2) but with parent A caring for the children on Monday and Tuesday nights in week one, and Wednesday and Thursday nights in week two, and parent B doing the reverse. The configurations extend far beyond this and there is no ‘one size fits all’.
The key advantages of equal shared care include the benefits which can flow from the substantial involvement of both parents in the life of a child, including better emotional wellbeing. The parents’ respective strengths, resources and connections can be enjoyed optimally by a child. A 50/50 division of time may help reinforce to the child that both parents have equal status in terms of their parental powers and responsibilities.
However, equal shared care arrangements may present difficulties, particularly for very young children. The old and pre-Children Act 1989 approach was that a child ‘going backwards each week between mother and father, with no single settled home, is prima facie wrong’ (see Lord Justice May in Riley v Riley  2 FLR 429) and it is true that logistics can be difficult. Where parents are entrenched in adult conflict, a 50/50 arrangement can expose a child to harm because of the increased opportunities for disputes arising from the need for more day-to-day co-parenting. Critics argue that the emphasis on equality of time indulges the parents’ sense of fairness rather than focusing on what the child requires.
Ultimately, whether an equal shared care arrangement is a good idea depends on the circumstances of the family. The proximity of the parents’ homes (including in relation to any educational establishment), their respective work commitments, ability to co-parent constructively and the particular characteristics, needs, age and wishes of the child may all play a role in determining whether 50/50 care can work.
A key message from the research in terms of outcomes for children is that it is not necessarily the precise arrangements that matter, but how parents manage the relationships. Insofar as there may be an increase of 50/50 equal care arrangements in the future, logistically it would be helpful if each week had an even number of days rather than seven!
Julia Townend is a barrister at 4PB, London