A Common Form of Arrangement
I cannot even say the words. A huge emptiness would well in my stomach, a deep loathing for those who would deign to tell me they would ALLOW me ACCESS to my children – those I loved above all, those I created, those who gave meaning to everything I did, those who were the very best of us two and the absolute physical manifestation of our once blinding love. Who the hell are they that they should ALLOW anything? REASONABLE CONTACT!!! Is the law mad? Am I a criminal? An ABSENT parent. A RESIDENT/NON-RESIDENT parent. This Lawspeak which you all speak so fluently, so unthinkingly, so hurtfully, must go.
Bob Geldof (Geldof, 2003)
The new orders introduced by the Children Act 1989 were designed to allow for various shared care arrangements. Residence and parental responsibility were treated as entirely separate concepts so that a non-resident parent could maintain an involved role in his child’s upbringing. Giving one parent residence would not take away parental responsibility from the other. Presenting the Act to the Commons, David Mellor said the orders ‘reflect our emphasis on encouraging parents to participate fully in the child’s upbringing’ (Hansard, 1989). On the 10th anniversary of the Act Lord Irvine repeated this philosophy, ‘The underlying philosophy of the Children Act is that parents have a shared responsibility for the upbringing of their children even after the parents’ relationship has broken down’ (Irvine, 1999). The background to the Children Act is provided by the Law Commission’s Report on Guardianship and Custody (Law Commission, 1988) introduced in Chapter Three,
It was never our intention to suggest that children should share their time more or less equally between their parents. Such arrangements will rarely be practicable, let alone for the children’s benefit. 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 discouraged… More commonly, however, the child will live with both parents but spend more time with one than with the other… It is a far more realistic description of the responsibilities involved in that sort of arrangement to make a residence order covering both parents rather than a residence order for one and a contact order for the other (my emphasis).
The Law Commission proposed the introduction of the orders with which we have grown familiar. The new ‘contact’ orders replaced the old access orders and were intended to be viewed from the perspective of the child rather than that of the parent. They are orders ‘requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other’. Like the child’s welfare, contact is not defined; the word ‘otherwise’ allows for contact to be either direct or ‘indirect’, thus ‘contact’ regularly indicates a level of communication – by letters or cards – entirely insufficient for maintaining a relationship.
‘Residence’ orders were intended to replace the old custody orders and settle ‘the arrangements as to the person or persons with whom the child is to live’. By the time the Act was drafted, however, the crucial words ‘or persons’ had been omitted, sending a clear message to judges that the new residence orders were not to be made in favour of both parents. During the Lords debate Lord Kilbracken queried this point and called for an amendment. The Lord Chancellor, Lord Mackay, replied that under Section 6(c) of the Interpretation Act 1978 ‘words in singular include the plural and words in the plural include the singular’, though he omitted the clause, ‘unless the contrary intention appears’, which was surely intended in the Children Act. Lord Kilbracken withdrew his amendment, but not without observing, ‘what is said in your Lordships’ committees on the record is in fact never brought up again in any court’ (Hansard, 1988).
Official guidance from the President of the Family Division, Elizabeth Butler-Sloss, noted that, ‘a shared care order has the advantage of being more realistic in those cases where the child spends considerable amounts of time with both parents, brings with it certain other benefits, and removes any impression that one parent is good and responsible whereas the other parent is not’ (Butler-Sloss, 1989). Nevertheless, she promoted the ideology that a child should have only one home,
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.
Solicitors typically recommend that fathers apply for contact rather than residence on the grounds that they are more likely to be awarded it (and solicitors don’t like to challenge convention); the difficulty is that innocently applying for a contact order holds the implied request to be treated as a second-rate parent. These orders are routinely flouted, and do not achieve their objective of facilitating or sustaining proper relationships between children and their non-residential parents. Probably the most common myth spread about fathers by their detractors is that they are denied contact by the courts; in fact the real problem is that contact orders aren’t enforced.
The flexibility of the orders has enabled judges to order the most minimal interactions between parents and their children, and has spawned a whole new industry of ‘contact centres’ in which fathers and their children, surrounded by formica furniture and broken toys, are expected to sustain fragile relationships, often under the suspicious gaze of the profiteers of this system, who are supposed to ‘supervise’ the contact to ensure it is ‘safe’. Fathers are expected to pay for this privilege, often at extortionate rates.
It has been a long and slow process to persuade the courts themselves to reject the earlier mistrust of shared residence and order it more often. In 1994 Francis Purchas articulated the prevailing orthodoxy that such an order ‘would rarely be made and would depend upon exceptional circumstances’ (Re H (A Minor) (Shared Residence), 1994). In the same year Elizabeth Butler-Sloss said such an order should only be made if there were something unusual about a case and a positive benefit in making an order which was not a conventional order, and that it was unlikely to be made if there were unresolved issues between the parents (A v A (A Minor) (Shared Residence Order), 1994). Yet in 1995 Nicholas Wall hoped that shared residence orders
may gradually win more grudging approval from the courts if the Judges begin to acknowledge that such orders can reflect practical arrangements made by parents and their children which work well in putting into satisfactory practice that purpose promoted by the Act which emphasises that parenting is a continuing and shared responsibility even after a separation (Re H (Shared Residence: Parental Responsibility), 1995).
Butler-Sloss was forced to back-pedal following the introduction of the Human Rights Act 1998. On 20th November 2000 she and Brenda Hale produced a contrary judgement which established that a shared residence order could be made where there was conflict and animosity (D v D (Shared Residence Order), 2001); Hale said,
Contrary to earlier case law, it is not necessary to show that exceptional circumstances exist before a shared residence order may be granted. Nor is it probably necessary to show a positive benefit to the child. What is required is to demonstrate that the order is in the interests of the child, in accordance with the requirements of s.1 of the Children Act 1989.
If it is either planned or has turned out that the children are spending substantial amounts of their time with each of their parents then [the shared residence order] may be an entirely appropriate order to make.
Thus at the turn of the century this type of order came to be seen as a way of defining an on-going situation (the children spent 38% of their time with the father) rather than prescribing a new one, and the sole-residence-plus-contact paradigm remained the rule; Hale confirmed this in Re A in 2002 and revealed the fundamental weakness of the order which is that it shares only residence and not responsibility,
But the law is that parents already have shared parental responsibility for their children… A residence order is about where a child is to live. It is very difficult to make such an order about a child who is not only not living with one of the parents but is, for the foreseeable future, unlikely even to visit with that parent. The court’s order has to be designed to reflect the real position on the ground (Re A (Shared Residence), 2002).
Mathew Thorpe showed a growing acceptance of the order and a rejection of the winner-takes-all convention, referring to D v D in 2003,
There is a need for courts of trial to recognise that there may well be cases that are better suited by a joint residence order than by residence order to one parent alone. Where there is a proximity of homes and a relatively fluid passage of the children between those two homes, the judicial convention that the welfare of the children demanded a choice between one parent or the other as a guardian of the residence order in order to promote the welfare of the children no longer runs as it used to run (Re A (Children) (Shared Residence), 2003).
Thus by 2003 a shared residence order could be used prescriptively where the parental homes were close together. Thorpe went further in Re F by demonstrating that shared residence could also be appropriate where the parents lived far apart, in a case where the mother moved from Hampshire to Edinburgh in order to thwart contact,
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 (Re F (Shared Residence Order), 2003).
Nicholas Wilson concurred,
Will an order for shared residence be valuable to [the children] 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?
These three cases, D v D, Re A and Re F, were cited by Nicholas Wall the following year and showed how a prescriptive shared residence order could be used to affirm the importance of a child’s relationship with both parents and their equality in the eyes of the law even in a case involving tremendous conflict and false allegations against the father,
This case has been about control throughout. Mrs A sought to control the children, with seriously adverse consequences for the family. She failed. Control is not what this family needs. What it needs is co-operation. By making a shared residence order the court is making that point. These parents have joint and equal parental responsibility. The residence of the children is shared between them. These facts need to be recognised by an order for shared residence (A v A (Shared Residence), 2004).
Wall’s 2006 judgement in Re P demonstrates how far judicial thinking had moved since 1989: the father’s appeal against the decision of the trial judge was allowed on the grounds that an order for shared residence reflected the reality of the situation and that there were no compelling reasons not to make it. A shared residence order could at last become the default position:
Good reasons are required if a shared residence order is not to be made. 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 value of conveying the court’s message that neither party is in control and that the court expects parents to cooperate with each other for the benefit of the children (Re P (Children), 2006).
The next step was to make shared residence an acceptable order when the applicant was not biologically the child’s parent, in order to confer parental responsibility. The first case concerned two girls conceived through anonymous donor insemination within a lesbian relationship (Re G (Residence: Same Sex Partner), 2005). The biological mother intended to relocate with the children to Cornwall to move in with her new partner. The appellant partner (Miss W) applied for a shared residence order as the only way by which she could acquire PR for the children. Mathew Thorpe granted the order,
But perhaps more crucial for me was the [lower court] judge’s finding that between the first and second days of the hearing the mother had been developing plans to marginalise Miss W… The CAFCASS officer had expressed a clear fear that unless a parental responsibility order was made there was a real danger that Miss W would be marginalised in the children’s future. I am in no doubt at all that, on the judge’s finding, the logical consequence was the conclusion that the children required firm measures to safeguard them from diminution in or loss of a vital side of family life.
Within a month the biological mother sought her former partner’s approval for the move to Cornwall. The partner refused but the mother moved the children anyway, in secret and in clear breach of the order. Miss W commenced proceedings both to locate the girls and for sole residence. CAFCASS recommended defined contact instead, but it was a ‘fine balance’ and the officer had little confidence the mother would obey future orders. Joyanne Bracewell had no confidence in the mother; she rejected the CAFCASS recommendation and preserved the shared residence order while reversing the time allocated to each parent. The mother appealed; Brenda Hale reversed the reallocation of time in Bracewell’s order. She also made an order for Family Assistance, and warned the mother against further breach. She quoted from an Australian case,
…the fact of parenthood is to be regarded as an important and significant factor in considering which proposals better advance the welfare of the child. Such fact does not, however, establish a presumption in favour of the natural parent, nor generate a preferential position in favour of the natural parent from which the court commences its decision-making process (Hodak, Newman and Hodak, 1993).
The importance of the case was that it established the legitimacy of making a Shared Residence Order in respect of a non-biological parent – a social and psychological parent – in order to confer Parental Responsibility. Further litigation followed in the Court of Appeal and in the House of Lords; Miss W spent in excess of £200,000 before acting in person. Orders for contact were not obeyed and the Guardian recommended sole residence in the mother’s favour and no contact; the trial judge agreed. Miss W appealed (Re G (Children)  EWCA Civ 1434): she had received the Guardian’s report only 3 days before the trial; she had not been allowed to adjourn to introduce an expert who advised increased contact and therapy; correct procedure had not been followed: the mother had made no application to vary the shared residence order; the Guardian had been less than proactive in a case involving two LIPs and was not alive to the manipulation of the children by their mother,
A subtle but familiar strategy is for the primary carer to declare that it is for the children to decide, and they may go whenever they please, whilst at the same time projecting a clear message that she does not wish or expect them to go.
The expert was re-engaged and the case remitted for re-trial.
The second case revolved around paternity fraud (Re A (A Child: Joint Residence/Parental Responsibility), 2008). A father had brought proceedings for and obtained a parental responsibility order. A CAFCASS report recommended joint residence and defined staying contact. The mother cast doubt on paternity and a DNA test duly confirmed the father was not the biological father. The mother was unable to accept the father should have PR or any say in his child’s upbringing. The case became protracted and persisted for more than 4 years. The mother planned to move away, threatening to disrupt what had become, despite her opposition, regular contact. The father obtained a prohibited steps order and sought shared residence on the grounds that he would otherwise be marginalised; the mother objected.
In December 2007 the court awarded joint residence with defined generous contact and PR, but allowed the mother to move. She was also barred from introducing the child to his biological father without the court’s consent, and both parties were barred from making further applications. The mother appealed on two grounds: firstly, that the Recorder had erred in principle and in law, had inappropriately linked the father’s PR to the mother’s relocation, had unduly favoured the ‘social and psychological’ father over the biological mother and thus undermined her as biological parent. Secondly, the court had not sufficiently considered the child’s biological parentage, perpetuating a lie and excluding the biological father (who did not wish to be involved in his child’s life).
In rejecting the appeal Sir Mark Potter emphasised the shared residence order was made, not to give the father undue rights – the mother remained the primary carer, but to affirm the father’s responsibilities and ensure he was not marginalised; it was the only legitimate means by which to confer parental responsibility on an individual who could not otherwise apply for it. Potter also assessed the case law and current policy on shared residence orders; he made an important distinction,
The fact is, Mr A is not H’s father or parent either in common parlance or under any definition contained in the Children Act or other legislation. He is not a father by biological paternity or adoption, nor a stepfather by marriage. He is a person entitled, by reason of the role he has played and should continue to play in H’s life, to an order conferring parental responsibility upon him. He is thus a person who, jointly with the mother, enjoys the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to that child but he does not thereby become the father of that child.
Potter went on to summarise the status of the shared residence order,
The making of a shared residence order is no longer the unusual order which once it was… 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 be psychologically beneficial to the parents in emphasising the equality of their position and responsibilities.
This contradicted Hale’s 2002 opinion that ‘a residence order is merely about where a child is to live’ (Re A (Shared Residence), 2002); this was the intention of the Act which Hale, after all, had co-written; Potter, who had never been a family judge, was making up new law. Both cases show that a shared residence order is now the most appropriate order to make when a parent tries to marginalise the other, regardless of conflict, regardless of geographical separation, regardless of one parent continuing to be the primary carer and regardless of biology. The father’s biological status is a factor and an important one, but should not trump the child’s welfare. There is still, however, a long way to go before the judiciary and CAFCASS willingly accept that a presumption of shared residence is in the best interests of the child, and at present these orders are being made predominantly for older children and where there is an established history of shared care. Contrary to the expectations of the Law Commission, contact remains a far more common order than shared residence. In Chapter Thirty-One we shall explore the Government’s proposals for reform of residence and contact orders.
Hodak, Newman and Hodak,  FLC 92-421 (1993).
A v A (A Minor) (Shared Residence Order),  1 FLR 669 (1994).
Re H (A Minor) (Shared Residence),  1 FLR 717 (1994).
Re H (Shared Residence: Parental Responsibility),  2 FLR 883 (1995).
D v D (Shared Residence Order),  1 FLR 495 (2001).
Re A (Shared Residence),  1 FCR 177 (2002).
Re A (Children) (Shared Residence),  3 FCR 656 (2003).
Re F (Shared Residence Order),  2 FLR 397 (2003).
A v A (Shared Residence),  (2004).
Re G (Residence: Same Sex Partner),  EWCA Civ 462;  2 FLR 957 (Court of Appeal 2005).
Re P (Children),  1 FCR 309 (2006).
Re A (A Child: Joint Residence/Parental Responsibility),  EWCA Civ 867 (Court of Appeal 2008).
Butler-Sloss, E. (1989). Children Act 1989 Guidance and Regulations (Vols. 1, Court Orders).
Geldof, B. (2003). The Real Love that Dare Not Speak its Name: A Sometimes Coherent Rant. In A. Bainham, B. Lindley, M. Richards, & L. Trinder, Children and Their Families: Contact, Rights and Welfare (pp. 171-200). Oxford.
Hansard. (1988, December 19). London.
Hansard. (1989, April 27). London.
Irvine, R. H. (1999, May 8).
Law Commission. (1988). Review of Child Law Guardianship and Custody, Law Com. Working Paper 172. Law Commission.