Shared Residence Order - All in the Name .......?

In a society that it is constantly evolving, it is no wonder that the law has to also try and keep up with such changes. Family dynamics have radically changed over the last 50 years. The Civil Partnership Act is an example of recognition of the changes. The shift in caselaw in respect of shared residence orders is another example of such changes.

When the Children Act 1989 first came into force, sole residence orders were the norm. One parent would be recognised as providing the primary home and the other parent had contact orders made in their favour and was therefore referred to as the non resident parent- a title which many found offensive. The idea that children could have two homes baffled Judges and advocates alike. It was regarded as undesirable for children to be to-ing and fro-ing between parents and shared residence orders were only made in exceptional circumstances. 

Over time, the attitude towards shared residence orders have altered. It could now even be said that shared residence orders are the norm rather than the exception. Such orders are reflecting the reality of how children are spending their time. However, the concept of two homes does not necessarily mean the children spend an equal amount of time in each home.

It is important for separating parents to realise however that the Courts will only become involved in arrangements for children if there is a dispute. ‘ If it ain’t broke, don’t fix it’! If arrangements are working and agreed, they should simply carry on as they are, no Court Orders are required. This avoids the stress, and cost of court proceedings which should always be avoided where possible. Sometimes it is not possible to reach an agreement as to the division of time between parents or the amount of contact. Judge’s have to consider the applications and make orders that are appropriate to the circumstances.

The approach a Judge will take in determining the appropriate order in such applications, is two – fold (Re P) - although these two strands should be considered separately and not fall together (Re K):

i) What division of time is in the child’s best interest?

ii) Under what label should those arrangements be termed?

The notion that a child would benefit from having one settled home for stability may not always be the right approach for all children.  Over time the Courts and parents were recognising that some children with separated parents will in fact benefit from having a settled home with each parent.  Again, not necessarily meaning an equal amount of time but a child can have two homes spending 5 or 6 nights out of every 14 with one parent and 8 or 9 nights with the other.  If the arrangements for the child involve two homes and the child will spend time in both homes, even if this is an unequal division of time, this can be known as a shared residence order.  Some Judges are of the view that there is no compelling reason why, in such circumstances, such an order should not be made. 

It is important to note that a shared residence order does not mean a 50/50 division of time between each parent.  A shared care arrangement would mean an equal division of time between each parent. Shared residence does not.  Judges are frequently making shared residence orders in cases with unequal division of time or even when one parent relocates with the child to another country.

So why make a shared residence order when in the past the same division of time would have resulted in a sole residence order to the parent who has the children more and a contact order to the ‘non resident’ parent? Mostyn J summed up the current attitude of the Court’s towards shared residence orders and the importance of these Orders:

A shared residence order is ‘nowadays the rule rather than the exception, even where the quantum of care undertaken by each parent is decidedly unequal. There is very good reason why such orders should be normative for they avoid the psychological baggage of right, power and control that attends a sole residence order.’

Shared residence orders are being increasingly favoured by Judges to emphasise to parents the equality of their position and responsibilities. The orders help convey a message that neither parent has more control than the other and that the court expects both parents to work together and cooperate for the benefit of the children.

Some will question this and say that it is all but a label and what difference will this make? The Chief Judge within the Family Division, Sir Nicholas Wall, in addressing Families Need Father said exactly this and that he thinks there is a limit to the value of labels and what matters is what actually happens and that shared residence orders are not a simple fix for the difficulties between separated parents.

Others believe that the message that a shared residence order gives to parents and children can go a long way in highlighting the equal parental responsibilities parents have, and redressing the balance between parents, particularly  if a child’s time is not divided equally between the two.

Whilst share residence orders may be more than just a label in showing the intent of the Courts, ultimately if there is call for there to be a change towards a presumption of shared care in the future, this is a matter for parliament and only time will tell. However, remember not to confuse a shared residence order with a shared care many labels!