Print
See related documents
Committee Opinion | Doc. 13896 | 30 September 2015
Equality and shared parental responsibility: the role of fathers
Committee on Social Affairs, Health and Sustainable Development
A. Conclusions of the committee
(open)1. The Committee on Social Affairs,
Health and Sustainable Development fully supports the draft resolution prepared
by the Committee on Equality and Non-Discrimination and congratulates
its rapporteur, Ms Françoise Hetto-Gaasch, on her wide-ranging explanatory
memorandum which takes children’s rights into account.
2. The committee wishes to emphasise that a parent’s right to
shared parental responsibility, joint custody or shared residence
for a child can never supersede the rights of the child concerned.
Every child has the right not to be separated from his or her parents,
and to maintain personal relations and direct contact with both parents
on a regular basis, except if it is contrary to the child's best
interests. A child who is capable of forming his or her own views
also has the right to express those views freely in all matters
affecting him or her, the views of the child being given due weight
in accordance with the age and maturity of the child. It is thus
not sufficient for parents themselves or the competent courts to
determine how parental responsibility, custody or the child’s residence
are to be shared – the views of the child concerned must be taken
into account and his or her best interests must be given primacy.
3. The Committee on Social Affairs, Health and Sustainable Development
wishes to propose only two amendments to the draft resolution, as
the Committee on Equality and Non‑Discrimination has, in general, mainstreamed
the child-rights perspective.
B. Proposed amendments to the draft resolution
(open)Amendment A (to the draft resolution)
In paragraph 5.5, replace “but under no circumstances in cases of sexual or gender-based violence” with:
“limiting any exceptions to cases of child abuse or neglect, or domestic violence”
Explanatory note: Children have the right to be protected from abuse and neglect. This right supersedes the right of parents to benefit from the principle of shared residence. The proposed amendment seeks to clarify that all cases of child abuse or neglect should be taken into account when allocating residence, as well as domestic violence which generally affects both adults and children, and not only sexual or gender-based violence.
Amendment B (to the draft resolution)
In paragraph 5.9, after the words “a court-ordered mandatory information session”, insert the words:
“in order to make the parents aware that shared residence may be an appropriate option in the best interest of the child, and to work towards such a solution”
C. Explanatory memorandum by Mr Schennach, rapporteur for opinion
(open)1. Ms Françoise Hetto-Gaasch,
the Rapporteur of the Committee on Equality and Non-Discrimination,
has written a remarkably wide-ranging explanatory memorandum which
tackles the question of shared parental responsibility from a gender-equality
viewpoint, but also takes children’s rights into account. I fully
share her conclusion that, in general, shared parental responsibility
– both when a family is still intact, but in particular, following
a separation – benefits all parties (the mother, the father and
the child), all the more so when shared parental responsibility
is the outcome of an amicable settlement (for example, reached through
mediation), rather than ordered by a court.
2. As the rapporteur for opinion of the Committee on Social Affairs,
Health and Sustainable Development, whose mandate it is to protect
children’s rights, it is my duty to add emphasis to the child‑rights
perspective. All too often, separating couples treat custody of
and access to their children in the same way they treat their material
belongings: if they cannot agree who should keep the house or the
car or the sofa, they turn to the courts to validate their rights
to their property – and they expect the courts to do the same when
it comes to sharing parental responsibility, custody and/or the
child’s residence. Too many courts, steeped in legal and societal
traditions for which children’s rights are still relatively new,
succumb to the temptation to try to do justice to the parents’ competing
claims – while losing focus of the rights of the child concerned.
Even when an amicable settlement is found, for example through mediation,
the focus is all too often on ensuring that parents have equal rights
vis-à-vis their children, rather than on the rights of the child.
3. It bears mentioning here that there is no express right of
a parent to shared (or other) parental responsibility for a child
in international law (and even less so to shared residence) – but
each and every child has the right to maintain personal relations
and direct contact with both parents on a regular basis.
4. In societal terms, the policy of the member States will be
geared towards incentives for parents, in particular fathers, to
actively participate in child care and to shoulder greater responsibility.
The role of fathers in child care has only been marginally developed
within society, and unfortunately, the consequences of this become
apparent in the event of separation or divorce.
5. The member States need to make a political commitment to ensure
that the public is aware that while relationships and marriages
may end, parenthood does not. Mothers and fathers remain lifelong
parents, even when their romantic relationship has ceased to exist.
Here, society needs to become aware that rules and regulations are
solely intended to benefit the child and cannot be misappropriated
with regard to relationship issues.
6. Although briefly mentioned in Ms Hetto-Gaasch’s explanatory
memorandum, I would like to recall the three most important children’s
rights in this context, which have been guaranteed by the United
Nations Convention on the Rights of the Child (UNCRC) for over 25
years now, namely:
a. the child’s right not to be separated from his or her parents, and to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests (Article 9);
b. the right to express his/her views freely in all matters affecting him or her, the views of the child being given due weight in accordance with the age and maturity of the child (Article 12);
c. the right for the best interests of the child to be a primary consideration (Article 3), as interpreted in General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration.
7. Indeed, General comment No. 14 (2013) spells out the view
of the United Nations Committee on the Rights of the Child on shared
parental responsibility:
“67. The Committee is of the view that shared parental responsibilities are generally in the child's best interests. However, in decisions regarding parental responsibilities, the only criterion shall be what is in the best interests of the particular child. It is contrary to those interests if the law automatically gives parental responsibilities to either or both parents. In assessing the child's best interests, the judge must take into consideration the right of the child to preserve his or her relationship with both parents, together with the other elements relevant to the case.”
8. The UN Committee on the Rights of the Child has also made
very clear which elements must be taken into account when assessing
what the best interests of the child are: first and foremost, the
child’s own views. Recommendations which only focus on guaranteeing
parents equal rights vis-à-vis their children, or automatically
granting shared parental responsibility (or shared custody or residence)
to both parents thus fall short of children’s rights, who have the
right to have their own views taken into account, and their best
interests given primacy.
9. It goes without saying that it is not in the best interest
of a child to be exposed to violence and abuse: this, of course,
should be the primary consideration in allocating (or rather, not
allocating), in particular, custody rights to an abusive or neglectful
parent. Unfortunately, available data suggests that such situations
of violence are not as exceptional as they should be, 
and allegations of violence – in particular
when voiced by the child him or herself – should be taken seriously
and properly investigated.
and allegations of violence – in particular
when voiced by the child him or herself – should be taken seriously
and properly investigated.10. The rapporteur of the Committee on Equality and Non-Discrimination
has devoted several pages of her explanatory memorandum to the “shared
residence” model, in accordance with which each parent spends 35% to
65% of time with the child after their separation, underpinning
the recommendation contained in the draft resolution that the principle
of shared residence for children of separating couples should be
introduced, limiting exceptions to this principle to situations
of abuse and violence and adjusting the actual time of residence
with each parent to the needs and interests of the children concerned.
11. The United Nations Committee on the Rights of the Child has
not (yet) issued guidance on the shared residence model, but, as
in the case of shared parental responsibilities, I would expect
it to emphasise the rights of the child in this context: the right
for the child to be heard and have his/her views taken into account, and
the right for the best interests of the child to be a primary consideration.
12. On the first count, it is unfortunately rare for a child’s
views to be sought (as,
however, required in Croatia), in particular if the
parenting plan is not the outcome of a judicial order (in the United
Kingdom, for example, priority is given to the “no-order”-principle, and thus only when parents disagree
does the case come to court). It also seems to be rare to have children’s
views heard in mediation, which has led to calls for more child
inclusive mediation. I can thus not emphasise enough
the importance of paragraph 5.6 of the draft resolution: “respect
the right of children to be heard in all matters that affect them
when they are deemed to have a sufficient understanding of the matters
in question”, not just by courts, mediators and other professionals
involved, but also by parents themselves. I would also add that
children’s views need to be given due weight: it is not enough to
listen to them and then simply discard their views without taking
them into consideration. Of course, some things that children may
want may not be in their best interests, and children’s views can,
of course, also change over time as they mature. But I would argue
very strongly in favour of taking into account a child’s views,
in particular if he or she is distressed by the residence model
applied in their particular case.
(as,
however, required in Croatia), in particular if the
parenting plan is not the outcome of a judicial order (in the United
Kingdom, for example, priority is given to the “no-order”-principle, and thus only when parents disagree
does the case come to court). It also seems to be rare to have children’s
views heard in mediation, which has led to calls for more child
inclusive mediation. I can thus not emphasise enough
the importance of paragraph 5.6 of the draft resolution: “respect
the right of children to be heard in all matters that affect them
when they are deemed to have a sufficient understanding of the matters
in question”, not just by courts, mediators and other professionals
involved, but also by parents themselves. I would also add that
children’s views need to be given due weight: it is not enough to
listen to them and then simply discard their views without taking
them into consideration. Of course, some things that children may
want may not be in their best interests, and children’s views can,
of course, also change over time as they mature. But I would argue
very strongly in favour of taking into account a child’s views,
in particular if he or she is distressed by the residence model
applied in their particular case. 13. On the second count, the question of which living arrangements
are actually in the best interest of the child, opinions diverge,
though no-one will disagree with Baroness Hale of Richmond:
“When any family court decides with whom the children of separated parents are to live, the welfare of those children must be its paramount consideration … This means that it must choose from the available options the future which will be best for the children, not the future which will be best for the adults.”
14. There is, in fact, no consensus, yet, that the shared-residence
model is in the best interest of the child – opinions diverge widely
among researchers, campaigners (such as fathers’ rights groups ) and professionals (in particular,
amongst lawyers). Basically, there are still large gaps in the knowledge
base (in particular on the 50/50 “equal time” arrangements), which
allow researchers to come to different conclusions. These conclusions
are, as is natural, then cited to supports the arguments of those
who favour or oppose the shared-residence model.
) and professionals (in particular,
amongst lawyers). Basically, there are still large gaps in the knowledge
base (in particular on the 50/50 “equal time” arrangements), which
allow researchers to come to different conclusions. These conclusions
are, as is natural, then cited to supports the arguments of those
who favour or oppose the shared-residence model. 15. The most convincing arguments in favour of the shared-residence
model, which have also been cited by Ms Hetto-Gaasch, are, in my
opinion, that the available evidence suggests that children who
have lived in such arrangements do, on average, as well or marginally
better than
children of other divorced couples –
an outcome which is obviously in the child’s best interest, and
which seems to be due, to a large part, to the children’s better
relationships with their fathers.
than
children of other divorced couples –
an outcome which is obviously in the child’s best interest, and
which seems to be due, to a large part, to the children’s better
relationships with their fathers. 16. We should not gloss over the risks associated with making
the shared-residence model the norm, either, though: as expressed
by the British Law Society, “[s]uch presumption risks subordinating
a child’s best interests to the parents’ expectations of equal rights”, or
by the Children in Families Committee of the Family Justice Council,
“[s]hared residence applications are often made for the benefit
of the parents; their feelings; their power struggles within their
relationship; their attempts to control one another post separation
…”. Disentangling
financial and care motivations is also sometimes difficult. The
solution to mitigating these risks lies, in my opinion, in prioritising
children’s rights, by deciding on a case-by-case basis, involving
the children in the decisions taken, and making their best interests
the primary consideration. It is also for this reason that I am
proposing two amendments to the draft resolution: one to paragraph
5.5, to clarify that all cases of child abuse or neglect or domestic
violence should be taken into account when allocating residence,
not only sexual or gender-based violence, and one to paragraph 5.9,
to further promote mediation in the best interest of the child.
or
by the Children in Families Committee of the Family Justice Council,
“[s]hared residence applications are often made for the benefit
of the parents; their feelings; their power struggles within their
relationship; their attempts to control one another post separation
…”. Disentangling
financial and care motivations is also sometimes difficult. The
solution to mitigating these risks lies, in my opinion, in prioritising
children’s rights, by deciding on a case-by-case basis, involving
the children in the decisions taken, and making their best interests
the primary consideration. It is also for this reason that I am
proposing two amendments to the draft resolution: one to paragraph
5.5, to clarify that all cases of child abuse or neglect or domestic
violence should be taken into account when allocating residence,
not only sexual or gender-based violence, and one to paragraph 5.9,
to further promote mediation in the best interest of the child.17. Finally, I would like to mention a shared-residence, 50/50
“equal time” arrangement which is, unfortunately, very rarely practised
(probably because it presupposes the resources for three separate residences):
the child continues to live in the family home, and it is the parents
who alternately share that home with the child. I believe that this
arrangement is probably the one most suited to safeguarding the
child’s best interests, as it combines all the benefits of shared-residence,
50/50 “equal time” arrangements, without the drawback of the child
losing their home and having to to-and-fro between parents. It is
also the one which presupposes that the parents really do put their
child’s needs and interests first.
18. Allow me to sum up, in conclusion: As rapporteur for opinion
of the Committee on Social Affairs, Health and Sustainable Development
with a mandate to protect children’s rights, I feel that my focus
must be on the child-rights perspective, rather than on the gender
equality viewpoint. I fully support the conclusion of the Committee
on Equality and Non-Discrimination that, in general, shared parental
responsibility benefits all parties (the mother, the father and
the child), and commend Ms Hetto-Gaasch on her wide-ranging report, which
takes children’s rights into account. I would like to emphasise
that it is important to recognise that a parent’s right to shared
parental responsibility, joint custody or shared residence for a
child can never supersede the rights of the child concerned. It
is thus not sufficient for parents themselves or the competent courts
to determine how parental responsibility, custody or residence is
to be shared – the views of the child concerned must be taken into
account and his or her best interests must be given primacy.