Shared Residence, in UK family law, is a legal status recognising that children have two homes. When separating, some parents agree arrangements for the children without involving the courts. Parental hostility can contribute to parents disagreeing on arrangements, or there may be genuine differences of opinion as to the most suitable arrangements. Court proceedings can be costly, especially when using solicitors. There is also the emotional cost as most parents are stressed by court proceedings, which take time, and prevent people from being able to move on with their lives. If you are unable to agree with your ex-partner as to the arrangements for the children, it is worth considering mediation before going to court. If that is unsuccessful, it may be necessary to go to court to ask the court to decide what the arrangements will be. You may wish to apply for sole residence of the children, but it is worth considering applying for a Shared Residence Order, as shared residence is likely to be in your children's best interests (unless there is a history of violence or neglect by the other parent). Psychological studies record that parents with shared residence are less likely to suffer conflict that those with sole residence. More importantly, research records that children living in shared residence arrangements fare significantly better on all adjustment measures, especially when the parents are prepared to be flexible over arrangements. An application for a Shared Residence Order (SRO) recognises the importance of the other parent in your children's life and shows your respect for them as a parent. This can reduce the potential for future conflict. It counts in your favour when Judges and Court Welfare Officers see a parent respecting the other parent's strengths. It suggests that you see your children's welfare as important, and for your child, shared residence brings the benefit of encouraging both parents to be involved in their children's upbringing and care which helps assure the children's educational, social and psychological development. Does Shared Residence require the children to live half of their time with each parent? No. This is a very common misconception. Shared Residence simply reflects the children’s living arrangements in that it is a legal recognition that the children have a home with each parent. It may be that the children stay with one parent midweek and on alternate weekends, and reside with the other parent for the rest of their time. It is quite possible, where children live abroad or their parents live a considerable distance apart, that the children see one parent only during holidays and live with the other during term time. Shared Residence Orders may be appropriate and are made in all of these situations. Where children spent equal time living with parents, the correct term is 'equal parenting time' and not shared residence. Shared Residence and Parenting Rights A further common misconception is that resident parents (parents with a Residence Order in their favour, whether it is for shared or sole residence) have greater legal rights concerning matters related to their children's upbringing. The right to make decisions about your children's education, medical treatment, religion etc comes through having 'Parental Responsibility' (PR).' While a residence order (shared or sole) does grant PR, all biological mothers already have this, and biological fathers who were married to the mother OR whose children were born after December 2003 and whose names were included on the children's birth certificate will already have legal Parental Responsibility for their child. It is only unmarried fathers whose children were born before December 2003 who do not have PR, unless the court has granted a Parental Responsibility Order in their favour, or the mother has entered into a formal Parental Responsibility Agreement with them (see the factsheet on Parental Responsibility). The one additional right a parent with residence has, in comparison to a non-resident parent, is the right to take their children abroad for a period of up to one month without first seeking the other parent's agreement (or the court's if this was refused). Before taking a child on holiday abroad, a non-resident parent must obtain this agreement first. It is worth noting that once a residence order has been made, neither parent can take the children abroad for more than a month at a time without the other parent's permission (or the court's). What is undoubtedly true is that there is often an incorrect perception by teachers and medical professionals that a parent with residence has greater rights to involvement in their children's lives. This is legally incorrect. Other misconceptions There are still members of the judiciary who believe that shared residence orders are only appropriate when parents are in agreement. This is incorrect, and there are a number of instances where such juducial opinion has been challenged and overturned by the Court of Appeal. Are Shared Residence Orders common?Yes, although we are seeing instances of the court deciding that a residence order is unnecessary. Instead, a Judge simply sets out contact times for either parent, if the parents are unable to agree this themselves. Why would a court consider granting Shared Residence? The advantage of Shared Residence Orders are that they are perceived to: 1. promote a continuation of family life; 2. reaffirm the responsibility on both parents to provide care; 3. reaffirm the responsibility on each parent to provide financially for their children; 4. reduce the burden and stress of single parenting; 5. assist the children in maintaining meaningful relationships with both parents; 6. confirm to the children that each parent wishes to, and is able to provide them with a home. The following points are also worth noting and are taken from the case A v A (Minors) (Shared Residence Order) [1994] 1 FLR 669, 674 (see point 117). A Shared Residence Order: 1. removes any impression that one parent is good and responsible and the other is not; 2. has the benefit of being more realistic in those cases where the child is to spend considerable amounts of time with those parents; 3. brings with it certain other benefits (including the right to remove the children from accommodation provided by a local authority in the event that the child is taken into care - s.20 of the Children Act 1989). If the other parent doesn't have legal parental responsibility for the children, they do not have this automatic right. Shared Residence can help alleviate the grounds for parental hostility and reduce the potential for future conflict and a return to court. Such was the view in the case A Father and a Mother v Their Two Children (B and C) (2004) EWHC 142 (FAM) In the case D v D (Shared Residence Order) (2001) 1 FLR 495 the Court of Appeal found that a Shared Residence Order may be made where:
Shared Residence can encourage the parents to support one another in their parenting, this principle being set out in the case Re F (Shared Residence Order) [2003] EWCA Civ 592.
Shared Residence related research Child Adjustment in Joint-Custody versus Sole-Custody Arrangement: A Meta Analytic Review. Robert Bauserman, Journal of Family Psychology 2002; 16: 91-102 Children in joint custody arrangements fare significantly better on all adjustment measures than children who live in sole custody arrangements.The fact that joint custody couples also reported less current conflict is important because of the concern that joint custody can be harmful by exposing children to ongoing parental conflict. In fact, it was the sole-custody parents who reported higher levels of current conflict. Other research is sometimes cited in the UK concerning shared residence, and one study commonly referred to is 'Drifting Towards Shared Residence' by Professor Carol Smart, Dr Bren Neale and Dr Jennifer Flowerdew - Centre for Research on Family, Kinship & Childhood - University of Leeds. Be aware that that study looked at the experiences of only 30 children who were subject to equal parenting time arrangements (a 50/50 division of time which is often mistakenly confused with shared residence). Due to the limited sample size and the confusion over terminology, we recommend reference to the more detailed study by Bauserman and the further research below. | Court Forms To apply for a Shared Residence Order, you need to complete Form C100 and then take this to your local family court administration department. A helpful further guide is available from Her Majesty's Court Service, entitled 'Making an Application, Children and the Family Court'. CASE LAW Case law is a useful tool, both in terms of considering what a court 'might' consider to be relevant and to help you focus on and prepare legal arguments to put before the court. Be aware that in family law, little is set in stone, and each judge has a wide ambit of discretion to decide what they consider to be in your children's best interests. Different judges can reach different decisions in identical cases. As an example, case law sets out that shared residence orders may be made even when parents live in different countries. A Judge may decide that a shared residence order is not suitable for your children's circumstances and make a sole residence for the other parent. So long as he explains his reasoning, were you to appeal, it is unlikely you would have the Judge's decision overturned. However, were the Judge to say that shared residence orders cannot be made when parents live some distance apart, the Judge would be plainly wrong and the flawed reasonings for refusing your application for shared residence would be appellable. If you wanted to ask the court to make a shared residence order, and your children lived some distance away, it would be useful to refer the court to the case Re F (see further down), and have a copy of the case law printed and filed with the court, so the court could see that such a decision was permissable. Below, we provide a brief summary of key points in case law which may be of assistance in leave to remove cases. Re C (A Child) (Shared Residence Order) [2006] EWCA Civ 235. Lord Justice Thorpe made the following comment: ‘...the whole tenor of recent authority has been to liberate trial judges to elect for a regime of shared residence, if the circumstances and the reality of the case support that conclusion and if that conclusion is consistent with the paramount welfare consideration.’ Re F (Children) [2003] EWCA Civ 592. Shared Residence orders can be made when the parent's homes are separated by distance, even when the parents live in separate countries. In the case Re: F, a mother relocated from Hampshire to Edinburgh, and prior to this, the parents had shared in their daughters' care (despite a hostile separation). The trial judge, Her Honour Judge Bonvin, made a shared residence order, and the mother appealed against the Judge's decision. At the appeal, LJ Thorpe said: “The judge fully explained why she differed from [the Children and Family Reporter] on the fundamental question : is a shared residence order a practical order if the parents are to be separated by a distance of several hundred miles? The judge explained why she regarded the arrangements as a workable arrangement … [A] shared residence order must reflect the reality of where the children live their lives. The fact that the parents’ homes are separated by a considerable distance does not preclude the possibility that the children’s year will be divided between the two homes of the separated parents in such a way as to validate the making of a shared residence order”. Wilson J agreed and added : “Any lingering idea that a shared residence order is apt only where, for example, the children will be alternating between the two homes evenly … is erroneous … In any consideration as to whether to make such an order the welfare of the children will be paramount. Will it cause confusion for them if the court defines each of two homes as their place of residence? Or, on the contrary, will an order for shared residence be valuable to them as a setting of the court’s seal upon an assessment that the home offered by each parent to them is of equal status and importance for them?”. A v A (Minors) (Shared Residence Order) [1994] 1 FLR 669, 674 (see point 117) in that a Shared Residence Order: 1. removes any impression that one parent is good and responsible and the other is not; 2. has the benefit of being more realistic in those cases where the child is to spend considerable amounts of time with those parents; 3. brings with it certain other benefits (including the right to remove the children from accommodation provided by a local authority in the event that the child is taken into care - s.20 of the Children Act 1989). If the other parent doesn't have legal parental responsibility for the children, they do not have this automatic right. Re K (A Child) [2008] EWCA Civ 526 LJ Wall makes reference to another case, Re P (Shared Residence Order), in relation to the making of shared residence orders: “...Such an order emphasises the fact that both parents are equal in the eyes of the law and that they have equal duties and responsibilities as parents. The order can have the additional advantage of conveying the court's message that neither parent is in control and that the court expects parents to co-operate with each other for the benefit of their children." W (Shared Residence Order) [2009]EWCA Civ 370 (1) There is no requirement to establish that, unless the time to be spent by the child in the two households is close to being equal, unusual circumstances are required before a shared residence order can be made. (2) The inability of parents to work in harmony does not, of itself, amount to a reason for making a shared residence order, but a possible consequence of their inability to do so, namely the deliberate and sustained marginalisation of one parent by the other, may sometimes do so: dicta of Wall J in A v A (Shared Residence) [2004] EWHC 142, [2004] 1 FLR 1195 at [124] explained. (3) It is a contradiction in terms to grant a contact order to a person who has a shared residence order. D v D (Shared Residence Order) (2001) 1 FLR 495 the Court of Appeal found that a Shared Residence Order may be made where:
Guidance of Interest It is worth noting that some courts have been very progressive in recognising the findings of child welfare related research. The Guidance of the Midland Region Family Judges and Magistrates is particularly useful. A Child's Rights and the UK Government's Responsibilities Article 18 of the United Nations Convention on the Rights of the Child, to which the UK is a signatory, states: 'States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child.' Media articles of interest Attitudes regarding shared residence are changing. While the opinion of shared residence varies from court to court and judge to judge, the numbers in favour are increasing (see the article 'The Rise and Rise of the Shared Residence Order'). |
 | Countries that have Automatic Shared Residence following Parental Separation 25 States in the USA have moved to Shared Residence The Netherlands, Finland and Sweden came top of the UNICEF Child Wellbeing Report (published 2007). Belgium joined the enlightened family law nations in the last couple of years too. |  |
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Child Wellbeing / Education / Parental Inclusion From a child wellbeing perspective, children achieve more academically and likely be better psychologically adjusted when both parents are encouraged to take an equal role in their development, day-to-day care and schooling. A policy of family law which marginalises or excludes one parent isn't in children's best interests. Below are a number of academic and scientific studies which support that shared care (meaning equal parental involvement, and not necessarily equal parenting time) is in children's best interests. To achieve this, both parents need to have involvement in midweek care as well as time during holidays and weekends. 1. ‘The Role of Father Involvement and Mother Involvement in Adolescents' Psychological Well-being’ - Dr Eirini Flouri and Dr Ann Buchanan, British Journal of Social Work (2003) 33, 399-406 2. ‘The role of father involvement in children's later mental health’ - Dr Eirini Flouri and Dr Ann Buchanan. Journal of Adolescents (2002) Published by Elsevier Science Ltd. 3. ‘Early father's and mother's involvement and child's later educational outcomes’ - Dr Eirini Flouri and Dr Ann Buchanan. British Journal of Educational Psychology (2004) 4. ‘Life satisfaction in teenage boys: The moderating role of father involvement and bullying’ – Dr Eirini Flouri and Dr Ann Buchanan. The International Society for Research on Aggression (2002) Aggressive Behaviour published by Wiley Interscience 5. ‘Involved Fathers Key For Children’ – Dr Eirini Flouri and Dr Ann Buchanan for The Economic and Social Research Council (2002) The research also shows that a good relationship with the father or father figure can also protect against adolescent psychological problems in families where the parents have separated. 'There was a particularly strong association between father involvement with daughters during adolescence and a lack of psychological distress in adult life' says Dr Flouri. 'For boys who have involved fathers it was quite marked that they were less likely to be in trouble with the police as they grew older' she adds. 6. ‘The Impact of Parental Involvement on Children’s Education’ - The Department for Education and Skills (2003) 7. ‘A Good Childhood: Searching for Values in a Competitive Age’ – The Children’s Society (2009) Based on the experiences of 30,000 children, the research found that 'a child's performance at secondary school, self-esteem and well being as an adult is linked especially to the father's input' and 'children are 40% more likely to suffer mental health problems when separated from their fathers' and 'On average, children are less likely to fail at school or suffer depression the more they see their separated father.' Changing perceptions on the importance of shared residence and childwellbeing Historically, due to there being limited research on Shared Residence, the courts and CAFCASS Officers favoured sole residence in favour of the mother and limited contact for the father. The above authorities are slowly changing attitudes, but there remain members of the judiciary and welfare officers who remain ignorant of the findings. The role and impact of the father on child welfare is still often not understood. Newer and overwhelming research directly challenges the validity of the earlier (and in some areas, still current approach). Earlier research was based on the experiences of only 30 children (see 'Research on Shared Residence' in our Papers and Speeches section) which led some professionals to question shared residence (and some still do as some policies are still based on the early limited research findings). The newer and far more detailed studies are based on the experiences of thousands of children. |
The best outcome for children is one where parents act collaboratively in their upbringing, where tension is minimised and children don't witness parental conflict. At the time of separation or divorce it is understandable that emotions run high. How long feelings of anger and hurt persist can be helped or hindered by the framework which the parents and court decide upon. Common sense dictates that when one parent is granted more rights and the other is marginalised, resentment is a common outcome. Sole residence, in some instances, grants the resident parent the impression that they can control the other via the children. This can lead them to restrict contact or deny permission to holiday abroad with the children as a means to punish their ex-partner. Such actions rarely have anything to do with the children's best interests. All parties suffer, especially the children. I'm aware of both mothers and fathers with sole residence who have acted in this way. The problem isn't one of gender, but one of fairness and human nature. The best interests of children must always be paramount and this takes precedence over individual parental rights. An outcome which helps maintain a strong bond with both parents promotes an environment for parental collaboration and helps build a positive environment for the children. This is surely in the best interests of children which is why I favour shared residence as an outcome when parents separate. As importantly, scientific studies conclude that children are less likely to suffer mental health problems in adulthood and will achieve more academically when both parents are involved. An exceptions exists where either parent has experienced domestic violence, the children have suffered abuse, or where there are concerns about parental incapacity or child neglect. In such instances child and parental safety must always be the first consideration. Worth noting is the 2007 UNICEF Report into Child Wellbeing. The UK scored poorly while countries such as the Netherlands, Finland and Sweden were ranked at the top. These countries have moved to Shared Residence as the standard outcome following parental separation. Perhaps, one day, the concepts of residence and contact and granting parental responsibility will be abolished, and once parents separate, the only matter to be determined is the division of parenting time. |
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