D v D (Shared Residence Order) [2001]

D v D (Shared Residence Order) [2001] 1 FLR 495

"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]

Re A (Children) (Shared Residence) [2002] EWCA Civ 1343

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]

Re F (Children) [2003] EWCA Civ 592

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]

A v A [2004] EWHC 142 (Fam)

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]

Re C (A Child) (Shared Residence Order) [2006] EWCA Civ 235

´...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, support 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]

Re P (Children Shared Residence Order) [2006] 1 FLR 309 as repeated in Re K (Shared Residence Order) [2008] 2 FLR 280

"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 A (A Child: Joint Residence/Parental Responsibility) [2008]

Re A (A Child: Joint Residence/Parental Responsibility) [2008] EWCA Civ 867

The mother and the step father began a relationship while the mother was still pregnant. The biological father had no involvement. The mother sought to relocate. The court awarded joint (shared) residence to the step father, which also gave him parental responsibility, in part to ensure his role was not marginalised in the future. The order was appealed, and the appeal rejected.

Also worth noting the further clarification of when a shared residence order might be made (and one not restricted to parenting time) and the following is quoted from this judgment:

On granting parental responsibility via shared residence orders

´...In Re:H (Shared Residence: Parental Responsibility) [1995] 2 FLR P. 883, the Court of Appeal clearly stated that a shared residence order was an appropriate means of conferring parental responsibility upon a step father. [In] the much more recent case of R: G (Children) [2005] EWCA Civ P. 462, the Court of Appeal turned to the use of shared residence as a tool to ensure that the non-biological parent shared parental responsibility for the child concerned.

Parental Conflict not an obstacle to granting a shared residence order

´It is not the case, as has been suggested by Mrs R, for example, that conflict and parental acrimony are grounds to refuse to make an order for shared residence. In A & A (Shared Residence) [2004] 1 FLR 1195, Wall J (as he then was) made a shared residence order against a background of tremendous conflict between the parents that resulted in frequent applications to the Court.

On shared residence orders generally and psychological benefits to the parents

66. The making of a shared residence order is no longer the unusual order which once it was. Following the implementation of the Children Act 1989 and in the light of S.11(4) of that Act which provides that the Court may make residence orders in favour of more than one person, whether living in the same household or not, the making of such an order has become increasingly common. It is now recognised by the Court that a shared residence order may be regarded as appropriate where it provides legal confirmation of the factual reality of a child’s life or where, in a case where one party has the primary care of a child, it may by psychologically beneficial to the parents in emphasising the equality of their position and responsibilities.

Re W (Shared Residence Order) [2009]

Re W (Shared Residence Order) [2009] EWCA Civ 370

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]

AR (A Child: Relocation) [2010] EWHC 1346 (Fam)

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 common in some regions, in other 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.

Further Information

For parents seeking a shared residence order, we have a 93 page e-guide on shared residence available from our Shop which can be downloaded to PC (the software is intended for PCs only... not Macs or mobile devices).