A look at the changing status of the residence order pursuant to the Children Act 1989.

A residence order (section 8 of the Children Act 1989) means ‘an order settling the arrangements to be made as to the person with whom a child is to live’. Section 11(4) of the act says that ‘where a residence order is made in favour of two or more persons who do not themselves all live together, the order may specify the periods during which the child is to live in the different households concerned’.

However, the perceived status of the residence order has grown beyond its actual legal status. To have the division of time between households labelled as ‘residence’ to one parent and ‘contact’ to the other is seen as giving the ‘contact parent’ a lower status in the child’s life. One is now frequently faced with parents who believe – erroneously – that if they are labelled as a ‘residence’ parent they somehow have more legal standing, or to put it negatively, more legal power in the child’s life.

One theme behind the act was that while relationships might come and go, parenthood was for keeps. In the act as amended, this includes (in broad terms) all parents having parental responsibility from the moment of the child’s birth, this responsibility being unaltered by marriage, separation or divorce. Gone was ‘custody’, with the hived-off power that went with ‘care and control’. The intention was that both parents would feel equally responsible – and therefore empowered – in relation to a child, whether they were the main carer or not. Sadly, that intention has not been fully realised.

In a clear reflection of that position, the Court of Appeal, in the recent case of Re K (a child) (shared residence order) [2008] All ER (D) 55 (Apr), described the move away from the terms of the act and towards the concept that the term ‘shared residence’ has special meaning, as being based upon ‘settled principles’.

Those principles were enunciated by the Court of Appeal in the cases of Re F (children) (shared residence order) [2003] EWCA Civ 592, [2003] All ER(D) 258 (Mar), Re G (residence: same-sex partner) [2005] EWCA Civ 462, [2005] All ER(D) 25 (Apr) and Re P (children) (shared residence order) [2005] EWCA Civ 1639, [2005] All ER (D) 116 (Nov); and Mr Justice Wall (as he then was) in the central case of A v A (shared residence) 2004 EWHC 142 (Fam), [2004] All ER(D) 54 (Feb).

A v A was a long-running and very difficult case in which the guardian described the parents as being in a ‘virtual state of war’ from 1997 to 2003. The case was probably not over when Mr Justice Wall gave his judgment, but the family was ‘departing’ from the courts at least for a while. The question was – upon what framework of orders?

Mr Justice Wall made it clear that the case had been about control, and in order to reflect the position between the parties as it was hoped would pertain in the future, he made a shared residence order. He wished to reflect the reality of the children’s lives and 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’. The children, by 2003, were spending roughly equal amounts of time with each parent.

His statement of principle bears repetition. It is the ‘settled principle’ referred to in the most recent case of Re K (above): ‘Where children are living with one parent and are either not seeing the other parent or the amount of time to be spent with the other parent is limited or undecided, there cannot be a shared residence order. However, where children are spending a substantial amount of time with both their parents, a shared residence order reflects the reality of the children’s lives. It is not necessarily to be considered an exceptional order and should be made if it is in the best interests of the children concerned.’

The key aspects are:

  • Substantial shared time but not necessarily equally shared time; and
  • A need to make a statement about control/avoidance of marginalisation of one parent, or (in a more harmonious case) an accurate reflection of the children’s reality.

Re P (above) is an excellent example of the more harmonious sharing of time. The Court of Appeal criticised Judge Mackintosh for not making a shared residence order where the children’s time was shared almost equally between the parent’s households.

In Re F (above), time was divided unequally and the matter was not harmonious. The children lived in Edinburgh with one parent in term time and in Hampshire with the other in holidays. Lord Justice Thorpe said: ‘Any lingering idea that a shared residence order is apt only where, for example, the children will be alternating between two homes evenly is erroneous.’

In Re K (above) the child’s time was shared about 60/40 between mother and father. The child’s regime was of crucial importance because the child had Mosaic Down’s Syndrome. District Judge Smith refused to share the child’s time equally, placing proper importance on the maintenance of the child’s routines. However, he then went on to refuse a shared residence order, in part on the basis that time was shared unequally. This was where he fell into error. Equally shared time is not a condition precedent for a shared residence order. The key principles established in A v A make this clear. The district judge had not found any evidence of malign influence on the part of the father, and, accordingly, a shared residence order would be made.

Not all cases are suited to a shared residence order. In the right case, however, the Court of Appeal is eager to make such orders for the reasons set out above. The technical issue which this eagerness raises is not about the proper concept of children sharing their time between their parents, equally or otherwise, nor that such sharing might well merit an order reflecting the equal status of the parents/carers involved. The issue is that sections 8 and 11(4) of the 1989 act are being misused. A residence order pursuant to the act has no legal impact on parental status. Status arises from the indivisible parental responsibility each parent has for his/her child and includes duties and responsibilities, as well as rights and authority (section 3(1)).

Perhaps it is time for a change in the act, to reflect its apparent failure to meet parents’ aspirations?

District Judge Spencer sits at Teesside Combined Court.