Going Dutch
The question of default shared care returns time and again in family law, with the Netherlands frequently cited as the model. Yet the Dutch position is often misunderstood. It is not simply about dividing a child’s time equally between parents, but about the wider principle that separation should not push one parent to the sidelines.
To some, “50/50 parenting” sounds like a fairer starting point, helping to ensure that one parent is not pushed to the margins after separation. To others, it sounds like a simplistic formula that fails to consider welfare, abuse and the complexity of real family arrangements. As with most issues in family law, the right answer lies in the detail.
What makes the Dutch model significant is not a blunt rule of equal time, but the stronger legal and cultural expectation that separated parents continue to parent together. Parenting does not become optional because the relationship has ended. Parents are generally expected to agree a parenting plan covering where the children will live, how major decisions will be made, and how the children’s costs will be met. That reflects a very different mindset from a system in which one parent quickly becomes the “main” parent and the other is gradually reduced to a visitor.
Issues with the current system
England and Wales already gestures towards that philosophy, but it does not embrace it with the same confidence. Our law is, rightly, child focused. The welfare of the child remains the court’s paramount consideration, and the welfare checklist remains central. There is also the statutory presumption of parental involvement, but that carefully avoids saying anything about equal time. In principle, that makes sense. In practice, however, many parents feel that the system says one thing and does another. That is because the real problem is often not the legal test, but what happens before the court can properly apply it.
In far too many cases, I have seen parents abuse the system by making false allegations, exploiting delay and using the court process itself to establish a status quo in their favour. By the time the court is finally ready to make a decision, the child has often been living within a particular arrangement for many months, sometimes much longer. At that stage, the court is understandably cautious about disrupting what is already in place. The result is that a delay can itself determine the outcome. The arrangement prevails, not necessarily because it was ever the fairest or best one, but because it was allowed time to harden into the status quo.
That is one of the strongest arguments for at least reconsidering whether England and Wales needs a firmer starting point when it comes to shared parenting. A stronger expectation that both parents remain fully involved could reduce the tactical advantage gained by the parent who gets in first, controls the narrative or manages to create a pattern before meaningful scrutiny takes place. It might also encourage earlier and more serious discussion about parenting arrangements, rather than allowing cases to drift into entrenched dispute.
That does not mean adopting a blunt “50/50 by default” rule, and family lawyers should be careful not to let slogans replace proper analysis. Equal time is not always workable, and it is certainly not always safe. Cases involving domestic abuse, coercive control, substance misuse, untreated mental health difficulties or entrenched hostility require careful analysis, not ideological shortcuts.
50/50 isn’t always best
PD12J exists for a reason. Any model that talks confidently about shared care without putting safety first is not progressive; it is naive.
There is also the obvious point that equality on paper is not the same thing as fairness in real life. Shared care may work well where parents live near one another, can communicate sensibly, and can manage school runs, homework, clubs, medical appointments and the thousand other practical demands of raising a child. But many families do not have those conditions. Geography, housing, work patterns, finances and the child’s own needs can all make a fixed presumption feel artificial. Worse still, it may fuel even more litigation, with parents arguing not about what works for their child, but about why they should or should not be treated as entitled to a particular share of time. That is why the more useful lesson from the Netherlands may not be “bring in 50/50”, but take co-parenting more seriously from the outset.
That is also where the Pathfinder pilot may prove important. For those unfamiliar with it, Pathfinder is a different approach to private law children cases that aims to identify issues much earlier, gather better information from the start, focus more clearly on the child’s experience and reduce the damaging drift that so often characterises these disputes. If it works as intended, it should reduce the opportunity for parties to weaponise delay, entrench a one-sided arrangement, or allow allegations and counter-allegations to dominate for months before the court gets to grips with the real issues. In that sense, Pathfinder may address one of the biggest practical injustices in the current system: not the legal principle itself, but the way procedure can be manipulated before principle is ever properly applied.
What should reform look like?
So, should England and Wales move closer to the Dutch model? In one sense, yes. We should be bolder about saying that, where safe and workable, both parents matter, both parents remain responsible, and both parents should expect to continue parenting after separation. We should be less tolerant of systems and delays that allow one parent to secure an advantage simply by creating the facts on the ground before the court can intervene properly.
But that does not mean abandoning the welfare principle in favour of a mathematical formula. Children are not assets to be divided equally, and family life is rarely neat enough for legal symmetry. The court must always retain the ability to say that equal time is wrong, unsafe or impractical in a given case.
The better reform is a stronger culture of shared parental responsibility, earlier scrutiny of allegations, faster identification of harm, and less opportunity for tactical delay. Just as importantly, we must do more for the children who are so often caught up in all of this. They are the ones who live with uncertainty, absorb conflict and too often become the subject of parental litigation rather than the focus of adult responsibility.
That would not solve every problem in private children law. But it might at least stop the system from rewarding the parent who plays it best, rather than the arrangement that serves the child best. If the debate about shared care is really to mean anything, it should not be about parental entitlement or achieving a higher share of time. It should be about building a system that protects children sooner, hears them better, and places their welfare at the centre not just in principle, but in practice. The real test of any reform is not whether it sounds fair to parents, but whether it leaves children less exposed to conflict, delay and damage.
For more information or advice about child arrangements, divorce, or other family law matters, please contact Gorkem Ozsoy at go@branchaustinmccormick.com or +44 (0) 20 7851 0138.
