Joint residence orders - moving with the times

It is a long-established principle, following the advent of the Children Act 1989 - which came into force in October 1991 - that, on divorce, district judges will commonly grant a certificate of satisfaction (see section 41 of the Matrimonial Causes Act 1973) in relation to any child of the family without making another order.



The certificate will be granted on consideration by the judge of the content of the statement of information for children form and, unless there is a clear reason for a judicial intervention, the judge is unlikely to interfere with arrangements agreed between the parents. There will certainly be no expectation of automatic involvement by the court and clients are commonly advised that, notwithstanding any desires they may have for their arrangement to be enshrined in an order, it is unlikely that a section 8 order under the 1989 Act will be granted.


Practitioners old enough to remember the law before the Children Act came into force will recall that, on divorce, custody, care and control and access orders - or a combination - would always be made in relation to a child of the family.



The no-order principle enshrined in the Act brought a shift away from previously accepted judicial intervention. The received wisdom, in the drafting of the Act, was that families would fare better after divorce if orders were not forced on them but that parents were left to resolve matters by agreement, and a positive benefit to the child had to be shown before an order would be made.


However, there will always be family disputes that cannot be resolved without the involvement of the court and, commonly, the courts are called on to deal with applications under section 8. The Children and Adoption Bill has received its second reading in the Commons on 2 March 2006. There is no date set yet for the committee stage, but there is every indication that it is going through speedily. The green paper preceding the Bill demonstrated that there has been an increase in applications - for example, for contact orders - and, of those applications, 99% led to the making of an order.


It was also acknowledged that the social context in which section 8 applications are made has changed. This has been brought about, in part, because of the general shift towards fathers taking a greater role in the upbringing of their children and other factors to include the greater incidence of both parents being employed.




Social change


This social change, and consequent judicial recognition, is demonstrated by the increased incidences of shared residence orders. In A v A [1994] 1 FLR 669, shared residence orders were deemed to be rare and would only be made in unusual circumstances. The current trend is perhaps not a reflection that parents are able to get along harmoniously, but can rather be seen as a judicial and positive attempt to make parents work together. Joint residence orders can be used to ensure that there exists no inequality of parental power thus enabling a parent to use a residence order in his or her favour as a means of control of the non-resident parent.


My firm has seen an instance where the judge granted a joint residence order of the court's own motion. The application before the court was for a sole residence order by a mother who was the primary carer.


In A v A, Mr Justice Wall (as then) said, among other things: 'There must, accordingly, be an order. That order, in my judgment, requires the court not only to reflect the reality that the children are dividing their lives equally between their parents, but also to reflect the fact that the parents are equal in the eyes of the law, and have equal duties and responsibilities towards their children.'


Almost a decade later, in Re H (agreed joint residence: mediation) [2005] 1 FLR 8, Ms Justice Baron made a joint residence order. The father had a pre-existing residence order but, as stated in paragraph 33: 'For the avoidance of doubt, I wish to make it clear to all parties that I do not regard the residence order made in March 2003 as being of any real relevance to my decision. It does not give the father an "advantage", nor does it "disadvantage" the mother.'


In this case, the parents had, prior to the hearing, agreed the amount of time the five-year-old child was to spend with each parent, but what they could not agree on was whether the child should follow the father's relocation to Devon and change schools or live with the mother and remain at the existing school. The judge determined that the child's primary attachment was to his father and, applying the welfare principle and check-list, Ms Justice Baron considered it was in the child's best interest to move to Devon with his father.


In the matter of W (a child) [2005] EWCA CIV 1025 12 July 2005, the Court of Appeal had to consider whether or not the criticism made against the first instance judge for failing to make a joint residence order was justified. It is difficult to imagine, in earlier years, an appeal being mounted as a consequence of the first instant decision. The reality of the situation in this case was that when the child was with the father as a matter of fact, the paternal grandmother was the primary carer. In these circumstances, the court held that the judge was entitled to look at the arrangements proposed and the reality of the situation.


In Puxty v Moore [2005] EWCA CIV 11386, the Court of Appeal had yet again to consider whether or not in the instant case the judge had erred in his determination to order joint residence between the parties. Sadly, both parents were recovering alcoholics, although it was noted that the father was having a greater degree of success in his recovery than the mother. The mother applied a great deal of pressure and she was manipulatively dishonest in her attempts to bribe the youngest daughter of four children, aged 10, with a pony, the child's heart's desire.


It was accepted that the mother had been highly disruptive to the children's relationship with their father, with whom they had been living. Nevertheless, it was concluded that the most pragmatic approach in the circumstances was to allow the parties to share custody of the child. The appeal was therefore dismissed.




Children's wishes


Yet again, in Re R (children) (shared residence order) CA 20 April 2005, the court was called on to consider whether the first instance judge had erred in his granting a sole residence order to the mother. In this case, the Children and Family Court Advisory and Support Services (CAFCASS) officer's report stated that the children themselves had made it clear they were happy with their current circumstances of shared care. The first instance judge made his order on the basis that, although he noted the children's wishes, he found the parents did not have a good relationship. It was in the face of this evidence, together with his conclusion that the mother was better able to meet the children's emotional needs, that led him to grant a sole residence order to the mother.


On appeal, it was determined that the judge's approach to the issue of shared residence was unsupportable. It was held that the judge had misdirected himself on the issue of shared residence. However, it was also determined that there would be a greater risk to the children's current security by litigating the matter further. Although misdirection in the judgment had been demonstrated, it was not considered to be the right course of action for the court to exercise its discretion to order a retrial.



A different point, but one that still holds the theme of social change, is that of the separate representation of children, as demonstrated in Mabon v Mabon [2005] VWCA CIC 634. The Court of Appeal considered whether separate representation of the six children of the family was appropriate.


On separation, the mother took the three youngest children to live with her and the three older children remained with the father. The mother's application for a residence order led to a report being filed by the CAFCASS officer. All six of the children were joined as parties to the action to be represented by the appointed guardian.


The three older children, then aged 17, 15 and 13, sought to instruct a solicitor to represent them at a hearing. The application was refused, as the judge considered there were almost no advantages to independent representation and several disadvantages, including delay, emotional damage to the children and exposure to the harshness of the litigation process. The children appealed and, on allowing the appeal, an order was made for separate representation of the three children.


Rule 9.2A of the Family Proceedings Rules 1991 deals with separate representation of children and was drafted to meet the UK's obligations in respect of article 12 of the UN Convention on the Rights of the Child 1989 and article 8 of the European Convention on Human Rights.


In Mabon, the appeal was upheld and separate representation of the three children was ordered. It was considered that the first instance judge was plainly wrong and there had been no doubts as to the sufficiency of the children's understanding. It was said that 'the courts must, in the case of articulate teenagers, accept that the right to freedom of expression and participation outweighed the paternalistic judgment of welfare'.


Arguably, this case also demonstrates a shift in the judicial approach of separate represe-ntation of children and a growing recognition of autonomy and consequential rights of children.




Resolved disputes


In deference to the no-order principle, practitioners will be only too familiar with the difficulties attached to persuading a judge to make orders in cases where previously vehement disputes have been resolved between the parties.


Undoubtedly, the case of Re G (children) (residence order: no-order principle) Court of Appeal 28 July 2005 could be usefully significant in such circumstances. This case concerned an application by the father of two children, aged seven and eight, who had applied for a parental responsibility order. Lengthy negotiations between the father and the mother ensued, and it was finally agreed that the father should be granted parental responsibility by consent, and that there should be a residence order by consent in favour of the mother.


The judge made the order for parental responsibility and questioned the need for a residence order, having taken the view that section 1(5) of the Children Act in effect dictated that there was a presumption against making an order. In the circumstances, he could see no reason to upset that presumption and declined to make the residence order, despite the parties' agreement.


Section 1(5) of the Children Act provides: 'Where a court is considering whether or not to make any one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so will be better for the child than making no order at all.'


In Re G, on appeal it was determined that the district judge had misdirected himself in principle. The question under statute is not whether there is a real substantial issue that needs to be resolved by the making of the order, but whether the making of an order is better for the children than not making an order. The wording of section 1(5) of the 1989 Act did not create a presumption one way or another, but puts the onus on the court to consider whether it is better for the child to make the order than not to do so.


It was determined that the court should not go behind agreements carefully negotiated between the parties and should pay respect to the decision of parents who had requested an order that would benefit the management of the children's lives.


To the extent that the 1989 Act allows the court to make orders that accurately reflect the changing social needs, demands and pressures attaching to family disputes, it is commendably drafted.


Occasionally, courts are criticised for being slow to recognise the need to make orders that encompass social change.


It is, perhaps, heartening on an analysis of residence applications in 2005 to note a significant swing of the judicial pendulum towards recognition of the changes in parental roles that have taken place during recent years. These changes are reflected in a greater willingness of judges to grant the once unfavoured joint residence order.


By Gill Rivers, consultant, Charles Russell, London