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Shared residence orders in English courts

Brief : 192785

Delivery Date : 01/02/07

Title: Family Law - Critically examine the extent to which English courts make shared residence orders.

ANSWER

In the great majority of cases in which a court is moved to make a residence order it do so in favour of one parent. A contact order usually accompanies the residence order, providing for the other parent to be allowed contact with the child.

The law governing residence orders is set out in the Children Act 1989[1]. The 1989 Act actually makes clear provision for residence orders to be made in favour of both parents, which is commonly known as a shared residence order.. It should be noted at the outset that a shared residence order does not necessarily infer an order requiring the equal sharing of contact time, which would often be impracticable. Section 8(1) states that “a residence order means an order settling the arrangements to be made as to the person with whom a child is to live”. Subsequently, section 11(4) of the Act provides that:

“Where a residence order is made in favour of two or more persons who do not themselves all live together, the order may specify the periods during which the child is to live in the different households concerned.”

As a consequence of this statutory construction it could be (and has often been) assumed that the general rule is that a residence order is made in favour of a single parent (who, given the reality of life and society, is in overwhelming number of cases the mother) and that shared residence orders are the exception to that rule and thus a comparative rarity.[2] In point of fact the wording employed in section 11(4) of the 1989 Act was drawn directly from the 1998 Law Commission Report on Guardianship and Custody[3], which included the recommendation to Parliament that Residence Orders:

"…should be flexible enough to accommodate a much wider range of situations.. In some cases, the child may live with both parents even though they do not share the same household. It was never our intention that children should share their time more or less equally between their parents. Such arrangements will rarely be practicable… However, the evidence from the United States is that where they are practicable they can work well and we see no reason why they should be actively be discouraged. More commonly, however, the child will live with both parents but spend more time with one than with the other."

Given a child’s requirements for schooling and stability this sentiment is difficult to criticise. However, it is submitted that in situations where a child spends a significant proportion of his or her week with both parents it would be far more realistic and appropriate to make a residence order covering both parents than a residence order for one and a contact order for the other. In the past this practice has generally been resisted by courts and welfare officers including CAFCASS[4] and the tendency has always been to leave the mother with sovereignty over the child.

The result is that the English Courts have over the years proved reluctant to make shared residence orders. For example, in an influential Court of Appeal judgment delivered soon after the entry into force of the Children Act 1989 in Re H (A Minor)(Shared Residence)[5], Purchas LJ, largely on the arguably tenuous basis of pre-Children Act 1989 case law, declared that shared residence orders, “should rarely be made and would depend on exceptional circumstances.”

In the case of A v A (Minors: Shared Residence Order)[6] the Court of Appeal stated that shared residence orders should be considered only in “unusual” situations and that such were very unlikely to be made in circumstances where there remained unresolved issues between the parties, including regarding the amount and nature of any contact or other significant instabilities or points of conflict. It is submitted that in reality this totally unrealistic jurisprudence plunged a dagger into the heart of the shared residence order as a viable option in child custody and contact cases. It is in the nature of divorce and family breakdown that tensions and emotions typically run extremely high between the separating parents and therefore in practice the Court of Appeal reduced the viable scope of the shared residence order to a fraction of its potential in this naive ruling. If there were no unresolved issues or emotional instabilities between the parties it is perhaps unlikely they would be getting divorced in the first place. Moreover, it is argued that the Court ruling effectively hands the decision as to whether a shared residence order can be made straight to the mother, who can choose to create difficulties and unilaterally block any such order being made, preserving full residence for herself.

In A v A (Minors: Shared Residence Order) the eminent judge Lady Justice Butler-Sloss said: “It must be shown that there is positive benefit to the child concerned for a section 11(4) order to be made.” This order specifies how time is to be allocated between the parents. However it is argued that there is an inherent, fundamental and natural positive benefit in allowing a child to have substantial regular contact with both its loving parents and that if anything the burden of proof should have been put on the other side of the argument. It is submitted that a better test would be that the presumption should be for shared residence unless it can be shown that there would be a negative impact on the child by so doing.

It could be argued that A v A (Minors: Shared Residence Order) actually eased the requirements necessary to sustain a shared residence order given that prima facie the construct “exceptional circumstances” was reduced to “unusual circumstances”. However, in fact it is argued that, on the basis of the foregoing analysis, the case made it more difficult to obtain such an order given the other judicial comments ventured. As the pressure group Families Need Fathers maintains, this ruling practically shut the door marked ‘Shared Residence Orders’ in fathers’ faces just two years after the entry into force of the 1989 Children Act.[7]

That said, some eight years later in the case D v D (Shared Residence Order)[8] Dame Butler-Sloss had a chance to reconsider the question of making shared residence orders and it is asserted she took a more positive and permissive approach.. She reflected on the Children Act 1989 Guidance and Regulations[9] and a passage cited by Connell J in the 1994 case A v A (Minors) (Shared Residence Order)[10] which comments on the shared residence order as follows:

“It is not expected that it would become a common form of order partly because most children will still need the stability of a single home, and partly because in the cases where shared care is appropriate there is less likely to be a need for the court to make any order at all.”

This is certainly true, as discussed above and goes some way to explain the previous policy of the Family Courts in this context, but the passage goes on to stress that:

“However, a shared care order has the advantage of being more realistic in those cases where the child is to spend considerable amounts of time with those parents, brings with it certain other benefits (including the right to remove the child from accommodation provided by a local authority under s 20), and removes any impression that one parent is good and responsible whereas the other parent is not.”

Dame Butler-Sloss acknowledged that her previous statements in A v A (Minors) (Shared Residence Order) could now legitimately be viewed as somewhat dated. Quite properly, it is submitted Dame Butler-Sloss retreated from the assertion that it is necessary to demonstrate a positive benefit to make a shared residence order. This is an additional hurdle not required by the legislation. It is argued that all that is necessary is that one must show a shared residence order is in the interest of a child in the accordance with the ordinary and general requirements of section 1 of the Children Act 1989.[11] There is no reason either express or implied to add anything further under the system imposed by the Act.

This indeed is, in essence, what the court held in D v D (Shared Residence Order)[12]. Dismissing the mother’s appeal against a shared residence order with the father of their three children the Court of Appeal ruled that contrary to earlier case law, it is not necessary to establish that so-called “exceptional circumstances” exist before permitting a shared residence order to be granted. In addition the court found that it was likely to be unnecessary to require proof of a positive benefit to the children concerned. The court confirmed that the relevant test was to be found in the baseline provided by section 1 of the Children Act 1989, which enshrines the simple and fundamental principle that in determining any question in connection with the upbringing of the child “the child's welfare shall be the court's paramount consideration”.[13]

Bringing this analysis right up to date, in the 2006 case Re C (A Child) (Shared Residence Order)[14] the Court of Appeal upheld a father’s appeal against refusal of a shared residence order. The court held that the whole tenor of recent authority (post- D v D) had been to free trial judges to make shared residence orders, if the circumstances and the reality of the case supported that decision and if that conclusion is consistent with the sovereign welfare consideration.

Concluding Comments

Despite the dawning of the “age of equality” the law has sheltered a presumption, which is both natural and enduring but by no means universally correct, that mothers make the best primary child carers. This presumption, reinforced by social and employment trends and patterns, found expression in the interpretation and application of the law and the default position of the English Courts was for a long time to make a residence order in favour of the mother and a contact order in favour of the father. Shared residence orders have been a relative rarity as a consequence of this factor and a veritable raft of other reasons including the practicalities and sensitivities typically associated with relationship breakdown.

However, since the seminal decision in D v D, the courts have demonstrated an increasing willingness to make shared residence orders in appropriate circumstances and it is submitted that this must be welcomed as a significant advance in the law and a retrenchment in the position, role and status of fathers in society.

THE END WORD COUNT FOR TEXT OF ANSWER ONLY : 1747

GLOBAL DOCUMENT WORD COUNT: 1881

BIBLIOGRAPHY

Children Act 1989: http://www.opsi.gov.uk/acts/acts1989/Ukpga_19890041_en_1.htm.

Children and Adoption Act 2006:

http://www.opsi.gov.uk/acts/acts2006/20060020.htm

Law Commission Report on Guardianship and Custody (1998) Law Com No. 172.

Children and Family Court Advisory and Support Service: http://www.cafcass.gov.uk/.

Children Act 1989 Guidance and Regulations, Vol. 1, Court Orders, The Stationery Office Books, (1991).

Fisher M., and Whitten S., Child Contact - Law and Practice, (2006) The Law Society

Flowerdew J., Neale, B. and Smart, C. (2004) Shared Residence: Not a magic solution, Solicitors Family Law Association Review (bi-monthly) issue 104: January. 16-17

Cases as footnoted drawn from original law reports.

1


[1] See for full text: http://www.opsi.gov.uk/acts/acts1989/Ukpga_19890041_en_1.htm; as amended, inter alia by: Children and Adoption Act 2006: http://www.opsi.gov.uk/acts/acts2006/20060020.htm.

[2] See for an insightful general overview: Fisher M., and Whitten S., Child Contact - Law and Practice, (2006) The Law Society..

[3] (1998) Law Com No. 172.

[4] Children and Family Court Advisory and Support Service: http://www.cafcass..gov.uk/.

[5] [1994] 1 FLR 717.

[6] [1994] 1 FLR 669.

[7] http://www.fnf.org.uk/shared.htm.

[8] [2001] 503 1 FLR.

[9] Vol 1, Court Orders, The Stationery Office Books (1991), para 2.2(8) at p 10..

[10] As cited above, at 674E.

[11] Contrast with Flowerdew J., Neale, B.. and Smart, C. (2004) Shared Residence: Not a magic solution, Solicitors Family Law Association Review (bi-monthly) issue 104: January. 16-17.

[12] As cited above.

[13] See Children Act 1989 section 1(1): http://www.opsi.gov.uk/acts/acts1989/Ukpga_19890041_en_2.htm#mdiv1.

[14] [2006] EWCA Civ 235.


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