The end of a relationship between parents usually necessitates decisions on care arrangements for children, which can sometimes be decided judicially. Scottish courts have evolved their approach since the days of “mother knows best” to consider the importance of having both parents involved in the child's life. But to what extent have approaches to shared care arrangements developed, and should a statutory presumption in favour of these arrangements become part of Scots law?
The statutory provisions contained in the Children (Scotland) Act 1995, which govern how the courts approach the issue of care arrangements for children in Scotland, are now more than two decades old.
Sections 1 and 2 of the Act confer parental responsibilities and rights on mothers and qualifying fathers, i.e. those married to the child’s mother, named on the child’s birth certificate for children born after 4 May 2006, or who have acquired such responsibilities and rights by agreement with the child’s mother or order of court.
Ostensibly, the law appears to avoid gender discrimination and stereotypes, as those parental responsibilities and rights defined in the legislation are conferred on both parents without distinction. This might suggest that the law promotes gender equality and “shared” responsibility for the care of a child, with the child’s best interests being the key factor in decision making.
In The Law Relating to Parent and Child in Scotland, para 8.04, Wilkinson and Norrie emphasise that s 11(2)(c) of the 1995 Act, which relates to orders for residence for children, is worded to allow for the possibility that a child can reside or “live with” two people who live apart. In para 9.14, it is acknowledged that there is no settled rule of law that a child, even of tender years, should be left in the care and control of his or her mother.
However, historical “maternal bias” may continue to pervade social attitudes and is evident in the approach of some decision makers (at least historically) when regulating the roles of parents in the life of a child and in considering applications for shared parenting.
In research conducted by Morrison and others in 2010, Understanding Child Contact Cases in Scottish Sheriff Courts, it was identified that fathers were more likely to be non-residential parents than mothers. Indeed, 92% of single parent households were noted as being those in which the parent was a mother. In many cases, separated parents are driven to consider conventional care arrangements for children, and they themselves hold the stereotypical view that a child should live with their mother and have periodic contact with their father. In some cases, the resident parent may perceive themselves to have a superior status to the contact parent and, in some circumstances, utilise this as a means of control.
The judges' maternal bond
These “default” care arrangements have no doubt been influenced by historic judicial reluctance to endorse the notion that a father is capable of having primary or shared responsibility for the care of a child, particularly a young child.
In Hannah v Hannah 1971 SLT (Notes) 42, the Lord Ordinary proceeded on the basis that it was “more in accordance with nature” that a child should be removed from the custody of her father and his cohabitant, with whom she had been residing for several years, and returned to her mother. In the Inner House, reversing the judge’s decision, Lord Walker observed: “What exactly the Lord Ordinary meant by nature, or what precisely nature has to do with it, I must confess I find difficulty in appreciating as a proper test in matters of this kind. It is not nature but the welfare of the child which is the material matter.”
Whitecross v Whitecross 1977 SLT 225 concerned an application for custody by a mother who had left her husband and six-month-old son with the declared intention of not returning to the family home. The sheriff later granted the mother’s application, founding on dicta in McLean v McLean 1947 SLT 36 that the tender age of a child was the leading consideration in determining which parent should have custody. In reversing the sheriff’s decision, the Inner House held that the sheriff had misdirected himself in that McLean did not lay down a proposition of general application and the weight to be attached to the youth of a child was but one of a number of considerations to be taken into account when determining the issue of custody, in which the welfare of the child was the paramount consideration.
Nonetheless, the “maternal preference”, particularly in relation to young children, appears to have been resurrected in the later case of Jordan v Jordan 1983 SLT 539. Communicating the decision of the Inner House, Lord Stott quoted the Lord Ordinary’s view that “prima facie a mother is better qualified than a father to bring up two young girls”.
This approach can also be seen in the widely quoted case of Brixey v Lynas 1996 SLT 908. As Lord Morison summarised: “it has been and remains the practice of the courts in Scotland to recognise as an important factor which has to be fully taken into account in a dispute concerning custody between the mother and father of a very young child, that during his or her infancy the child’s need for the mother is stronger than the need for a father… there is a generally recognised belief that a mother is ordinarily better able, for whatever reason, to minister to a very young child’s needs than is a father”.
The growth of shared parenting
However, examination of later cases indicates a shift in the judicial approach.
In McMillan v Brady 1997 Fam LR 29, a sheriff awarded custody of a young child to a father due to concerns about the mother’s inability to meet his needs, and risks she presented to the child. Whilst acknowledging the dicta in Brixey v Lynas, the court recognised that this was a case where a departure from the presumption that a young child was better placed with their mother was necessary.
More recently, in the English case of Re B (a child)  UKSC 5, which has been widely cited in subsequent Scottish cases, the Supreme Court, approving the approach of Lady Hale in the earlier case of Re G  UKHL 43, stated: “All consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the child’s best interests. This is the paramount consideration. It is only as a contributor to the child’s welfare that parenthood assumes any significance. In common with all other factors bearing on what is in the best interests of the child, it must be examined for its potential to fulfil that aim.”
Recent reported cases demonstrate an increasing willingness by Scottish courts to recognise the importance of paternal involvement in a child’s upbringing, and an acknowledgment that shared care can, in certain circumstances, be in their best interests. It is no longer the default that maternal primary care is preferred.
M v M  WL 4602349 concerned a case where the parties had, following their separation, agreed to share responsibility for the child's care. This arrangement became the status quo for that child. The pursuer sought a residence order and a specific issue order to relocate to England with the child. The sheriff declined to make those orders, observing that the “arrangement worked well because the parties made it work well” and that he had “heard nothing to persuade [him] that the arrangement, which is to the credit of both parties, has been anything other than a success”.
There was a similar outcome in DT v GG  WL 6774496. This case involved a four-year-old child whose father had been fully involved in her care from birth until separation. In spite of significant animosity between the parties, the sheriff concluded that the child's best interests were served by the court making her the subject of a shared care residence order. The sheriff noted it was apparent that “the child has a strong bond with both of her parents and it is in her best interests for that bond to continue”.
A similar approach was also taken in DH v GH  SCEDIN 43, where the sheriff found in law that it was in the best interests of the children that they reside, albeit in separate households, with both the pursuer and defender and made a residence order for each for the parties. The sheriff noted in this case that the parties “jointly shared the care of the children on a substantially equal basis… that care had operated by the parties’ agreement… without material difficulty”.
Finally, in GL v JL 2017 Fam LR 54 the parties had competing craves for residence and the pursuer sought a specific issue order to relocate with the two-year-old child outside Scotland. Lady Wise declined to make orders, which had the indirect effect of endorsing shared care between the parties, which had operated until then.
There is significant international research and growing evidence to support the hypothesis that children living in shared care arrangements have the same or better outcomes than in traditional residence and contact arrangements. Shared parenting expert, Professor Linda Nielsen, recently reviewed 60 studies on shared parenting and outcomes for children, considering various performance indicators – as discussed in “Joint Versus Solo Physical Custody: Children’s Outcomes Independent of Parent-Child Relationships, Income, and Conflict in 60 Studies”, Journal of Divorce & Remarriage 2014 59(4): 247-281. In 54 of those studies, children in shared parenting were found to have performed better or equally on all metrics. This appears to support the premise that shared care can promote the wellbeing of children.
Other jurisdictions have enshrined in law the presumption of shared care post-separation. Shared parenting in Sweden grew from 2% in 1984 to 35% in 2013. Similar statutory recognition of the importance of both parents being involved in their children's lives on a substantial basis exists in Canada (s 16(6) of the Divorce Act 1985), France (article 372 of the Civil Code), Australia (s 60B of the Family Law Act 1975), and in England (s 11(2) of the Children and Families Act 2014).
In spite of the willingness of the courts in Scotland to recognise the importance of having both parents involved in a child’s life, the Scottish Government has been unwilling to enshrine a rebuttable presumption to that effect in primary legislation. The absence of a statutory presumption in favour of shared care post-separation creates a dichotomy between the position of fathers who are married to or cohabiting with a child’s mother, and separated fathers.
Presumption: a step too far?
There are opposing arguments concerning the merit of a presumption in favour of shared care.
Those advocating such a statutory presumption contend that it promotes equality between parents, considers a child's best interests and can be departed from when justified. It is argued that a presumption provides structure for a decision maker adjudicating on the welfare of the child, and a guide on generally accepted values about what is intrinsically good for a child. It is said by Jonathan Herring in “The welfare principle and the Children Act: presumably it’s about welfare?”, Journal of Social Welfare & Family Law 2014 36(1): 14-25, that a lack of such a presumption in law provides parents with no predictability of decisions and makes arbitrary decision-making more likely.
The arguments against a statutory presumption for shared care appear to be more compelling. Those opposed to it suggest that it may undermine the paramountcy of the child’s best interests and the importance of the existing welfare test. It operates on the premise that the application of a crude conceptual theory on what is best for children generally, ought to take precedence over a bespoke assessment of individual circumstances and welfare. Anecdotal evidence supports the argument that in cases where there is equivocal evidence regarding whether such an arrangement would be in the child's best interests, the law compels a judge to make an order that they might otherwise not have made: see Jonathan Herring in the passage referred to above.
While the approach of the courts in Scotland appears to have shifted away from stereotypes regarding parental roles, primary legislation does not yet reflect the shift that would be necessary for Scots family law to recognise the importance of having both parents extensively involved in a child’s life post-separation. Undoubtedly, as society continues to change in respect of gender roles and the increasing prevalence of shared parental leave following the birth of a child, Scottish society will re-evaluate its attitude to the differentiation prescribed to parental roles based on gender.
Until COVID-19 related restrictions came into place, the Scottish Parliament Cross-Party Group on Shared Parenting was meeting regularly and it is, therefore, not inconceivable that the issue will be considered in the future by MSPs. Courts in Scotland will continue to consider shared care arrangements, and it is expected that the recent willingness of some judges to endorse this as being in a child’s best interests will, in appropriate cases, continue.
The willingness of the Scottish legal system to consider a shared care arrangement as a suitable outcome for a child is to be welcomed; however, a statutory presumption in favour of shared parenting may be a step too far. While it is difficult to challenge the assertion that shared care can offer children favourable outcomes, application of a presumption that it is best for children could deflect from the role of the modern court in assessing individual circumstances. Indeed, it may be that the introduction of such a statutory presumption would be no more likely to promote the welfare of the individual child than the now outmoded presumption that “mother knows best”.
Garry Sturrock is a senior solicitor in family law at Brodies LLP