Shared Residence Case Law Summary
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Re H (Shared Residence: Parental Responsibility)
[1995] 2 FLR 883 - <Back to Top>
"This is a case where a shared residence order
is not artificial but of important practical therapeutic importance. This is a
case where its making does reflect the reality of the father's involvement and
reflect the need for him to be given some status with the school to continue to
play his part as both parties wish to do."
"Shared residence has a different
psychological impact from residence with one, contact to another because, as
contact is defined, it requires that the parent with whom the child lives, must
allow the child to visit or stay with the other parent. Here it was necessary
for the boys to know they lived with the respondent and that they did not just
visit him."
D v D (Shared Residence Order) [2001] 1 FLR 495 - Download - <Back to Top>
"I am not certain that one does have to demonstrate
a positive benefit [to the child] to make a shared residence order. One
does have to demonstrate that a shared residence order is in the
interest of a child in accordance with the requirements of section 1 f the
Children Act 1989"
Shared residence orders could be considered even
when one parent was hostile to the idea.
Re A (Children) (Shared Residence) [2002] EWCA Civ 1343 - <Back to Top>
A shared residence order need not only be made
in exceptional circumstances, confirmed the authority and competence of both
parents and should be considered where there was a relatively smooth passage of
children between the parent's homes, and the homes were in close proximity.
Re F (Children) [2003] EWCA Civ
592 - Download - <Back to Top>
A shared residence order may be made, even when
parents live considerable distance apart (in this case, England and Scotland)
so long as the children divide their time between two homes (this does not mean
the equal division of time). Parents
living in separate countries does not prevent the granting of a shared residence
order.
A v A [2004] EWHC 142 (Fam) - Download - <Back to Top>
The court found that a shared residence order
'removes any impression that one parent is good and responsible and the other
is not, and has the benefit of being more realistic in those cases where the
child is to spend considerable amounts of time with those parents'.
Lord Justice Wall further confirmed that shared
residence orders may be made even when one parent is hostile to the idea (and
otherwise the 'no-order principle' would apply).
'If these parents were capable of working in
harmony, and there were no difficulties about the exercise of shared parental
responsibility, I would have …. made no order as to residence.'
Re C (A Child) (Shared Residence Order) [2006] EWCA
Civ 235 - Download - <Back to Top>
'...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.'
Lord Justice Thorpe identified the
following factors which, he considered, supported the making of a shared
residence order:
·
the child has a strong attachment to both parents,
happy and confident in both homes;
·
there was
real proximity between the two homes;
·
there was
real proximity of the homes to the school;
·
there was
real familiarity with both homes and sense of belonging;
·
the child expressed a perception of two homes;
·
there was
relatively fluid passage between the two homes;
·
there was
relatively fluid passage from school to the two homes;
·
there was some post-separation history of shared care.
Re P (Children Shared Residence Order) [2006] 1 FLR
309 as repeated in Re K (Shared Residence Order) [2008] 2 FLR 280 - Download - <Back to Top>
"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."
Re W (Shared Residence Order)
[2009] EWCA Civ 370 - Download - <Back to Top>
The
judgment in Re W reaffirmed that unusual circumstances are not required before
a shared residence order can be made, although there was the implicit
suggestion that where the time the child spends in the two households is close
to being equal, a shared residence order should be made. Also, that a shared
residence order can be made as a consequence of one parent's deliberate and
sustained marginalisation of the other. The judgment further confirmed that it
was a contradiction to grant a contact order to a person who has a shared
residence order.
AR (A Child: Relocation) [2010] EWHC 1346 (Fam) - Download -
<Back to Top>
In this
case, and with regard to the granting of shared residence orders, the
Honourable Mr Justice Mostyn comments "Indeed
such an 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, which was the one of the reasons that we were ridden of the notions of
custody and care and control by the Act of 1989." (The Children Act
1989)
TCM
Comment: While undoubtedly true in some regions, in some
courts shared residence orders continue to be rarely made. With regard to
the granting of shared residence, the approach of courts and individual judges
is not consistent, and each judge has a 'wide ambit of discretion' in
deciding what arrangements to make for children. It may be useful to refer both
CAFCASS and the court to the judgment in AR (A Child: Relocation), which was
made in the High Court, should they be leaning toward granting a sole
residence order.
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