Shared Residence When you speak to many people about family law and outcomes, the terms "parent with care", "main carer", "contact parent", "resident" or "non resident" parent are often used. Often both parents are bitter following a lengthy legal case which has occurred as a result of their being encouraged to 'win' at the expense of the other parent. The Legal Services Commission reported in 2007 that only a third of separating parents had been advised by solicitors that mediation was an option. While the media focusses on fathers who have become marginalised following separation, mothers can also experience this trauma. One in four children doesn't see their father as being part of their immediate family. For mothers who lose 'custody', they face social stigma as well as grief. Research confirms that the children are disadvantaged when either parent is marginalised. There is an alternative, and one which is growing in popularity amongst both parents and members of the judiciary. The Children Act 1989 allows for parents to 'share residence'. Essentially the children have two homes and the parents are treated equally in the eyes of the law. The Courts initially resisted 'sharing' residence and some still do, but shared residence is growing in popularity and not just in England and Wales but internationally. The Custody Minefield Book provides information about the legal advantages of shared residence, and this factsheet explains some of the practical advantages and gives examples of how the Court's ordering of shared residence has resolved conflict. Links are provided to specific case law which you can build into your own court case as well as educational research which confirms that children benefit from having both parents fully involved in their development. Why should I consider Shared Residence? 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 their children's welfare is the most important thing. |
Shared Residence Maintains the Status Quo A Shared Residence Order maintains the status quo in that the parents continue to share the care of their children and it: 1. promotes a continuation of family life; 2. reaffirms the responsibility on both parents to provide care; 3. reaffirms the responsibility on each parent to provide financially for their children; 4. reduces the burden and stress of single parenting; 5. assists the children in maintaining meaningful relationships with both parents; 6. confirms to the children that each parent wishes to, and is able to provide a home for them. |
Shared Residence sees parents treated fairly, is a more practical order than residence in favour of one parent alone, and has wider child wellfare benefits If the father doesn't already have legal parental responsibility, a Shared Residence Order grants him these rights.Shared Residence maintains the right of each parent to take their child abroad on holiday. The following points are worth noting from the case 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. |
Shared Residence gives stability should the Resident Parent to die Shared Residence reassures the children that if one parent dies they still have a home to go to. Shared Residence removes the need for a contact parent (non-resident parent) to apply for residence and removes uncertainty for the children at a devastating time. |
Shared Residence can reduce Parental Hostility In a number of recent court of appeal cases, judgments have been overturned due to judges in the lower courts being mistaken in the belief that shared residence orders are only made when parents are in agreement. Shared Residence can help alleviate the grounds for parental hostility and reduce the potential for future conflict and a return to court as seen in the case A Father and a Mother v Their Two Children (B and C) (2004) EWHC 142 (FAM) A Shared Residence Order may be made where: 1. one parent is hostile to the idea; 2. and it is not necessary for there to be exceptional circumstances before an SRO can be made . Refer to the case D v D (Shared Residence Order) (2001) 1 FLR 495. |
Shared Residence encourages parental collaboration 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, [2003] 2 FLR 397. |
 | 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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More countries recognise the benefits of shared residence The Copenhagen Post reports that shared residence is the default position in the family courts following a change in the law in October 2007. |  |
Child Wellbeing / Education / Parental Inclusion From a child wellbeing perspective, children achieve more academically when both parents are encouraged to take an equal role in their development and schooling. A policy of family law which marginalises or excludes one parent isn't in children's best interests. Read reports on the importance of both parents being involved in schooling, published by The Equal Opportunities Commission, The Department for Education and Skills (their research report into The Impact of Parental Involvement on Children's Education), and the Teachernet Working with Parents webpage. What do Judges think of Shared Residence? Attitudes in favour of 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'). In a 2006 Court of Appeal case, 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 C (A Child) (Shared Residence Order) [2006] EWCA Civ 235 |
Author's note 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. 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. 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. Research in America shows that when both parents are actively involved in their children's upbringing, the children achieve more academically, there are fewer instances of teenage pregnancy, fewer behavioural problems, less delinquency, reduced instances of teen drug or alcohol abuse, and less child povery. We now have research in the UK which confirms that children do better academically when both parents are involved in their education.Worth noting is the recent 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. |
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