John Mitchell takes a tour round the cases on shared care of children


Should parents have a legal right to spend equal time with their children? The government Green Paper 'Parental Separation: Children's Needs and Parents' Responsibilities' argues that such a presumption would not be in the best interests of most children. 'In many separated families such arrangements would not work in practical terms, owing to living arrangements or work commitments. Children are not a commodity to be apportioned equally after separation. The best arrangements for them will depend on a variety of issues particular to their circumstances.'


Now, Selwyn – today is Thursday, it’s the third week after Epiphany, and this is a leap year – so today you reside with me
However, shared residence appears to be growing more popular among parents and the courts are more willing than previously to use section 11(4) of the Children Act 1989 to 'specify the periods during which the child is to live in the different households concerned.'



Old approach



In Riley v Riley [1986] 2 FLR 429, parents arranged that their four-year-old daughter should spend alternate weeks with each of them. They lived about a mile apart, the child attending a school midway between the two homes. A joint custody order was by consent. Five years later the mother applied for sole custody. Her application was dismissed but her appeal was allowed.



'It was an unusual order to make in the first place. Fortunately, so far as one can see, it has worked well up to date and naturally there is a reluctance in children cases where things are going well to disturb that situation. But, with respect to the recorder, I think that the conclusion to which he came was clearly wrong. In my judgment, to keep a child of nearly nine, not far off puberty, going backwards each week between mother and father, with no single settled home, is prima facie wrong'.



These words of Lord Justice May were cited with approval in a number of cases. In Re H (A Minor) (Shared Residence) [1994] 1 FLR 717, Lord Justice Purchas commented that 'the establishment, as it were, of two competing homes only leads to confusion and stress and would be contrary to the paramount concept of the welfare of the child himself'.



In 1988, the Law Commission's Family Law Review of Child Law Guardianship and Custody, Law Com No 172, recognised that, although shared care was not without its difficulties and would not be appropriate in many cases, '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'. Despite this, the Court of Appeal remained sceptical. In A v A (Minors) (Shared Residence Order) [1994] 1 FLR 669, it held that Riley could no longer be considered good law because of the changes brought about by sections 8 and 11(4) of the Children Act 1989. However, there was a 'general principle' that shared orders are not appropriate in 'normal conventional circumstances' and should only be made where there is something unusual about the case that justified it in the best interests of the child. Lady Justice Butler-Sloss added: 'A shared residence order would, in my view, be unlikely to be made if there were concrete issues still arising between the parties which had not been resolved.'



New approach



D v D (Shared Residence Order) [2001] 1 FLR 495, concerned three young children who spent substantial periods of time with both their separated parents. These arrangements were subject to a high degree of animosity and there were frequent applications to court.



However, the children appeared to be coping well with the situation, although there was no guarantee this would continue. Their father applied for shared residence, arguing that he was being treated as a second-class parent by the authorities, the children's schools and doctors.


Lady Justice Hale commented: 'It seems to me that there is indeed a positive benefit to these children in those facts being recognised in the order that the court makes. There is no detriment or disrespect to either parent in that order. It simply reflects the reality of these children's lives'. Shared residence orders do not require exceptional circumstances and the sole criterion is what is best for the child. If it was either planned or happened that the child was spending substantial amounts of time with both parents, then a shared order might be appropriate. If there are major matters still unresolved, then 'it stands to reason' that there could not be a shared order.



Such orders are not impossible merely because parents live long distances apart. In Re F (Shared Residence Order) [2003] EWCA Civ 592; [2003] 2 FLR 397, a mother proposed moving to Edinburgh with two children who were younger than six. Both parents applied for residence. The trial judge ordered shared residence, partly on the ground that the mother might use an order for sole residence to exclude the father.



The children were to spend three weekends in four and one day in four weeks with their father in term time and each half-term holiday and school holidays divided equally between the parents. The Court of Appeal refused to interfere with the order, pointing out that it was erroneous to suggest that shared residence is appropriate only where time is divided equally.



The existence of parental disharmony may not necessarily prevent a shared order. A v A (Shared Residence) [2004] EWHC 142 (Fam); [2004] 1 FLR 1195, concerned an intractable contact dispute. Following a rejection of the mother's allegations that the father had sexually abused one of the children, Mr Justice Wall directed that the children spend equal time with both parents under a shared residence order. 'It is plain in terms of time spent in each home and importance of each home to the children that this is a prime case for a shared residence order.' The order would reflect the fact that the parents are equal in the eyes of the law.



However, no matter how great the need to underline parental responsibility, an order for shared residence will be appropriate only if the child is to have a home with each parent. In Re A (Children (Shared Residence) [2001] EWCA Civ 1795; [2002] 1 FCR 177, a boy lived with his father and refused to have contact with his mother, who lived with his two sisters. The Court of Appeal allowed an appeal against a shared order, holding that because a residence order is about where a child is to live, it was difficult to make such an order when the child is unlikely even to see the other parent.



District Judge John Mitchell sits at Bow County Court