THE USE OF SHARED RESIDENCE ORDERS

A DISCUSSION PAPER PREPARED BY THE

CHILDREN IN FAMILIES COMMITTEE OF THE FAMILY JUSTICE COUNCIL

AS PART OF THE FAMILY JUSTICE COUNCIL’S WRITTEN RESPONSE TO THE FAMILY JUSTICE REVIEW

In a recent leave to remove case

re AR (A Child: Relocation [2010] EWHC 1 346), Mostyn J, in giving his Judgment, said that:

… " 1. A shared residence order is nowadays a rule rather than the exception, even where the quantum of care undertaken by each parent is decidedly unequal.

2. If one were to draw up a hierarchy of human rights protected by the ECHR, near the top would be the right of a child, while or he she is growing up, to have a meaningful participation by both of his parents in his upbringing;…".

Although anecdotal evidence suggests that shared residence orders are made with increasing frequency, particularly in leave to remove case, there is no available research evidence in support of Mostyn J’s contention that such orders are nowadays the rule rather than the exception. There is a need for clear research evidence of the number of orders being made, where they are being made, the circumstances in which they are being made and the outcome of the making of such orders.

Whilst few would disagree with Mostyn J’s statement that a child has a ‘right’, while he or she is growing up, to have a meaningful participation by both of his parents in his upbringing, this is not a ‘right’ which children have ever been able to enforce against unwilling parents. Rather, it reflects a moral and potentially legal obligation on the parent with care to facilitate a relationship where the non residential parent wants this. Consequently, the Children in Families Committee of the Family Justice Council ("CIFC") questions the implicit assumption that in order to achieve such meaningful participation in a child’s life, his or her parents must have the benefit of a shared residence order made by the court.

It should be remembered that most parents do not litigate residence and contact issues when they separate. Instead, they are able to cooperate with one another and put their children’s interests first. The Children Act 1989 encourages this cooperative approach and discourages intervention by the state save where absolutely necessary, through the "no order" principle.

The Children in Families Committee believes that much greater emphasis should be placed by the courts on the need for cooperative parenting by parents when they separate, with stress being placed on the parents’ responsibility to meet the physical, emotional and psychological needs of their children and to behave responsibly towards each other as parents.

Shared 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, treating their children as chattels to be divided along with their houses and furniture and cash at the point of separation or divorce. The child mental health specialist member of the Children in Families Committee expressed a very firm view, based on her clinical experience, that shared residence orders are rarely in the best interests of children but are much more about meeting the needs and interests of their parents.

Children need a settled and stable home. They need routine and to know where their possessions are and where they will sleep at night. Shared residence orders can often complicate matters with children moving between the different homes in a way that is unsettling and difficult for the child. This undermines the child’s stability, to the detriment of the child.

Having two homes can cause confusion and introduce tensions into children’s lives making them feel that they must spend an equal portion of time with each parent otherwise they will hurt one of their parents and be seen as siding with the other. A shared residence order may have the unintended consequence of putting an additional burden of responsibility and anxiety)

Additionally there is a major shortage of affordable housing in the UK. The courts must take account of the realities of the lives of ordinary people who cannot afford two homes with space for children and the demands on social housing authorities with long waiting lists y on children who have already experienced the break up of their parents’ relationship.

Child poverty is a major issue for children of separated parents. Where children’s time is divided between two households the cost to each is almost as high as if the child spent all their time in that home. Whilst the costs of parenting under shared parenting

arrangements are higher, Shared residence increases child poverty because the parents’ available finances are spread much more thinly.

Parents do not understand the legal concept of Parental Responsibility ("PR") and some equate having a shared residence order with having PR. Many parents, especially non resident parents, see having a shared residence order as a desirable status, superior to having a defined contact order, as they feel that it more firmly acknowledges their role in the child’s life. Having a shared residence order makes the non resident parent feel better. The courts should do more to explain to parents what PR is, how it affects the way in which they care for their children post separation and should make it clear that it is not necessary to have a residence order (shared or otherwise) in order to have the status of a parent with PR. This information should be available in a number of different formats and all those seeking orders under the Children Act 1989, s.8 should be assisted to understand PR before they make their application, for example through a brief e-learning package which should be completed before an application can be made for an order unless it is an emergency response.

The lawyer members of the Children in Families Committee share the view of the mental health professional that shared residence orders can be a cause of further conflict and litigation in some cases, rather than bringing litigation to an end. Parents become parochial about "their" days or weeks when the child is "living" with them and are unwilling to be flexible even when to do so would be in the child’s best interest.

The Committee feels that some healthy scepticism about the appropriateness of shared residence orders is required to counteract an apparent growing judicial willingness to make such orders in circumstances where they may not be appropriate. Shared residence orders cannot be a solution of universal or even wide application. The Committee would prefer to see them made only in exceptional circumstances, those where there is potential for relocation or where one parent is resolutely denying the existence of the other’s PR and a shared residence order is used to make it clear that either parent could, in the view of the court, provide a home for the child (the implicit threat being that if the recalcitrant parent does not mend his or her ways, a full residence order may be made in favour of the other parent). Even in the circumstance of the Court making a shared residence order this does not mean that the time a child spends with each parent needs to be equal.

Current case law means that in practice a parent who has a sole residence order will get leave to relocate to another jurisdiction with the children. In a case where there is an international dimension, obtaining a shared residence order means that the parent who

opposes a relocation application will have at least some prospect of succeeding in preventing leave to remove being granted. The lawyer members of the Committee therefore believe shared residence orders may have a place in such cases at least where such an order reflects the involvement of the parents in their children’s life.

Shared residence orders can also be useful in international cases where the parents live in two different jurisdictions and the child really does have a home with each parent. A shared residence order in such circumstances ensures that the child can move freely between the two different countries to spend time with each parent in each home without difficult questions and explanations having to be given every time a national border is crossed.

There needs to be a public information campaign about Parental Responsibility and the need for cooperative parenting when a marriage or relationship ends. The judiciary and practitioners need to be reminded of the importance of, and thinking behind, the "no order" principle enshrined in the Children Act. The confusion in the minds of parents between PR and residence needs to be dispelled.

The Committee is not opposed, in principle, to the idea of a bench marking document setting out "normal" contact arrangements, to assist parents in reaching agreements about arrangements for their children. However, the document would have to be age-appropriate as children’s needs change as they grow older and contact arrangements which are appropriate for a four year old are unlikely to be appropriate for a 14 year old. The document would also need to make it clear that the "normal" arrangements set out are not prescriptive and are not an entitlement, but that arrangements should be made to suit the circumstances of each individual case. The documents should also make it clear that the interests of the child must be paramount and must be considered before the interests of the parents.

Somehow, we have to get away from the concept of "rights" and "sharing" when it comes to arrangements for children post separation and divorce and instead think in terms of children’s needs and their parents’ responsibility to meet those needs.

 

K (Children) [2011] EWCA Civ 793 Shared Residence

Application by father for permission to appeal against order granting mother leave to remove children to Canada in circumstances where the parents shared the care of the children. Permission to appeal granted and appeal allowed. The court confirmed that in the circumstances of the case the approach in Payne v Payne was not appropriate.

This is a decision of the Court of Appeal in an external relocation case where a father successfully overturned on appeal an order permitting his former wife to relocate to Canada with their two children.

The mother was Canadian, the father Polish. They met in Toronto in 1992 and later moved to England. They married in 2004 and had two daughters; I aged 4 years and A aged 18 months. They separated in July 2010.

Both parents worked in the banking industry, although not full time. They shared the care of the children under a shared residence order made in August 2010. The children spent five nights (six days) with their father and nine nights with their mother in every fourteen day period. The mother had the assistance of a nanny whilst at work whereas the father cared for the children unaided. In this respect the father's share of the care was not inferior to the mother's.

The mother applied for permission to relocate to Canada with the children. She wanted to go home to enjoy the support of her parents following the breakdown of the relationship with the father. The father objected due to his commitment to the girls and the significance of the shared care arrangement. CAFCASS had provided a report on the issue recommending that the mother's application be refused, although it was a "fine and difficult balance". Her Honour Judge Bevington granted the mother's application.

The father appealed on the basis that (i) the Judge rejected the recommendations of the CAFCASS officer without proper analysis or explanation, (ii) she directed herself by reference to guidance for applications by primary carers (Dame Elizabeth Butler-Sloss at paragraph 85 of Payne), rather than guidance in applications by a parent with a shared care arrangement (Hedley J in Re Y [2004] 2 FLR 330) and (iii) she referred only to the case raised by the mother and did not remedy this defect even when it was raised by counsel on behalf of the father.

The Court allowed the father's appeal. Their Lordships agreed that the only principle to come from Payne was that the welfare of the child is paramount. The rest is guidance to be applied or distinguished depending on the circumstances. The judge should apply the statutory checklist in section 1(3) of the Children Act 1989 in order to exercise his discretion. Thorpe LJ confirmed the approach set out in Re Y; that the guidance in Payne is only applicable where the applicant is the primary carer. Where parents share the burden of caring for the children in "more or less equal proportions" the approach in Payne at paragraph 40 should not be applied. The label "shared residence" is not significant in itself. Black LJ reached the same conclusion as Thorpe LJ and Moore-Bick LJ, but by a different route saying Re Y is not a different line of authority from Payne but "a decision within the framework of which Payne is also part". Future cases should not become embroiled in arguments as to whether the amount of time a child spends with each parent makes it "a Payne case" or "a Re Y" case. All the facts of the case must be considered.

 

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