Children and the Law

There should exist a presumption in favour of shared residence in England and

Wales in cases where it is sought. Discuss.
Parental separation affects many children and their families. Some three million of
the twelve million children in this country have experienced the separation of their parents.
Each year between 150 000 and 200 000 parental couples separate. Where the process of
separation is handled well, the adverse impact on children is minimised. Where separation
goes badly and, in particular, where children are drawn into parental conflict, then the
effects can be profoundly damaging for children.1 There are a high number of families
breaking down in Britain as in the rest of the world, sometimes durably affecting the lives
of the children involved. When the family breaks down, a number of situations can arise:
the children can live with one of the parents exclusively (residence), live with one parent
while still regularly spending time with the other (contact), or live with both parents,
sharing their time between their two parents (shared residence).
Some people feel that the law is unjustly weighted in favour of mothers2, who would
usually get residence while the fathers would be pushed away by the court. However, in
2005, the House of Commons Constitutional Affairs Select Committee rejected those
claims, saying that the family courts were not consciously biased against fathers.3 Research
in 20084 showed that in reality 80% of the children lived with their mother, while only
12% shared residence between two parentsalthough it has to be noted that in quite a
number of circumstances, parents were not seeking to get shared residence. Considering
those numbers, some have been thinking that there should exist a presumption in favour of

Parental Separation: Childrens Needs and Parents Responsibilities (Cm. 6273, 2004, Ministerial
Foreword)
2
Bainham et al (eds.), Children and their Families: Contact, Rights and Welfare (2003) Hart Publishing.
3
Family Justice: The Operation of the Family Courts, HC 116-1, March 2005.
4
Peacey, Vicky, and Hunt, Joan, Problematic contact after separation and divorce, Gingerbread, July 2008.

shared residence in cases where it is sought. William Farrell5, based on thirteen years of
research, has found that while intact families are the best option for children, when the
family breaks down equal parenting time with both parents is almost always far better for
children.
Shared residence is obtained through a shared residence order, as mentioned in
s11(4) Children Act 19896: 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. According to s8(1) CA
1989, it is settling the arrangements to be made as to the person with whom a child is to
live. Shared residence is usually viewed as meaning that the child will spend the exact
same amount of time with each parent. However, it does not have to be so: shared
residence exists as soon as the child lives in different households, and is decided by the
court. There are arguments both in favour and against shared residence; and even if shared
residence proved to be beneficial to children, would presuming it is always the best
solution be in the childrens best interest?

1) In favour of shared residence orders.

The courts have not hesitated to recognise the need for children not to be deprived
from one of their parents. It was held in Re R (A Minor)(Contact) [1993]7 that [it] is a
right of a child to have a relationship with both parents wherever possible and that in
general the parents with whom the child does not live has a continuing role to play, which
is recognised by s.2(1) of the Children Act 1989. S2(1) CA 1989 mentions parental

5

Farrell, Warren, Father and Child Reunion: How to Bring the Dads We Need to the Children We Love
(2001) Tarcher.
6
Hereafter referred to as CA 1989.
7
Re R (A Minor)(Contact) [1993] 2 FLR 762.

responsibility that both parents will usually have; granting shared residence emphasises the
fact that both parents are equal in the eyes of the law, and that they have equal duties and
responsibilities as parents, as Wall LJ analysed it in Re P (Children)(Shared Residence
Order) [2005]8.
Outside of the UK, Europe has also recognised the importance of spending time with
both parents. Article 8 of the European Convention on Human Rights highlights the right
for all to family life. As it was held in Hoppe v. Germany (Application No 28422/95)
[2003]9, the mutual enjoyment by parent and child of each others company constitutes a
fundamental element of family life; and although the European Court of Human Rights did
not want to substitute itself for the domestic authorities, they insisted on the crucial
importance of the best interests of the child. The European Convention on Human Rights
has had full force in Britain since the Human Rights Act 1998, and is further reason to
consider shared residence when possible.
Research all over the world also shows that in most cases, shared residence provides
for happier families. Sharlene Wolchik, looking into the differences between maternal and
shared residence in the US, found that both boys and girls in joint custody arrangements
reported experiencing a greater number of self defined, as well as consensually defined,
positive experiences within the past three months than did children in maternal custody
arrangements.10 In Australia, Patrick Parkinson and Bruce Smith showed that parents with
shared care arrangements are more likely to be satisfied11; and happier parents make for
happier children. Robert Bauserman12 also looked at was at the time called sole-custody
and joint custody: he found that more contact with a less-seen parent is associated with

8

Re P (Children)(Shared Residence Order) [2005] EWCA Civ 1639.

Hoppe v. Germany (Application No 28422/95) [2003] 1 FLR 384.
10
Wolchik et al, (1985); Maternal Verses Joint Custody: Childrens Post-separation experiences and
adjustment
11
Parkinson, Patrick, Smyth Bruce (2003) When the Difference is Night and Day: some empirical insights
into patterns of parent-child contact after separation. 8th Australian Institute of Family Studies Conference.
12
Bauserman Robert (2002), Child adjustment in joint custody versus sole-custody arrangements: a metaanalytic review. Journal of Family Psychology 2002, Vol 16 No 1, 91-102.
9

happier children, so joint parenting arrangements are likely to be better for children than
sole-parenting ones. He later confirmed this assumption, finding that children in joint
custody rather than sole-mother custody are more satisfied with their arrangements, and
are better adjusted.
Considering all this research, it appears that granting shared residence orders may be
the best solution for broken down families. However, in quite a number of cases, the
families are not looking to obtain shared residence. When one of the parents has left the
family home and does not particularly want to spend time with their children, there is little
point in forcing shared residence on them: the order will most likely not be be applied,
making for difficulties and unhappy children.

2) Against a shared residence order.

Although Warren Farrell13 has found in over two hundred studies that equal time
almost always better, a lot can be said against shared residence orders.
The most important argument against it is the gendered realities of parenting that
Richard Collier14 helped analyse. In the last few decades, there has been a steadily
increasing trend of gender equality: women work more and more often, and fathers have
been seen to be the stay-at-home parent. Subsequently, families may have relied less on the
mans income, and children may have been spending as much time with their father and
their mother. However, despite what some would like to think, it appears that mothers
often play a very important part in their childrens lives. The Commission of Equality and
Human Rights showed that in 2009 89% of fathers worked, as opposed to only 63%

13

Farrell, Warren, Father and Child Reunion: How to Bring the Dads We Need to the Children We Love
(2001) Tarcher.
14
Collier, Richard (2001) 'In search of the good father: law, family practices and the normative
reconstruction of parenthood', 22 Studies in Law, Politics and Society 13369.

mothers, over half of whom only work part time. This lesser percentage of mothers
working means that the mother will usually be the one spending the most time with the
child (especially when the child is very young). This reality means that the mother will
more often than not be the primary carer for the child, leading to really strong bonds
between them. The father, in turn, routinely is the primary earner: the family depends on
him financially to live. A shared residence order means that the children will spend time
with their mother as well as with their father. However, the children may be more
connected to his mother, being the primary carer, than to their father that they would see
less often. Furthermore, the father will commonly be spending a lot of time at work,
especially so since he would now have to provide for his ex-partner as well as for the new
family he may have: this makes for less time the father to care for the children when they
are residing with him. In these circumstances, establishing that the children should spend
quite a portion of their time (although maybe not half of the time) with the parent they
know less and will have less time to give them may not be very wise.
With this context in mind, it makes sense that in more than a small number of cases
the children will routinely see the parent they do not live with for a smaller amount of
time. Before a residence order is sought, the children are already living with one of their
parents, and a routine is usually established by the time the family goes to court. In cases
where the children have not been in contact a lot with the parents they are not living with,
it does not make sense for the court to grant a shared residence order. As it was held in A v.
A (Shared Residence) [2004]15, [w]here 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.

15

A v. A (Shared Residence) [2004] EWHC 142 (Fam), [2004] 1 FLR 1195.

This is especially the case where sexual offences have been committed against the
children by one of the parents. Although sharing time between the parents may come from
good sentiment, keeping the children away from the parent that has hurt them may be a
better idea.
Even where a shared residence order is given, the court must be careful not to
establish in the publics minds the idea that shared residence implies a similar right for the
parents to see their children for the same amount of time or under the same circumstances.
As David Norgrove put it in a Family Justice Review from March 2011, No legislation
should be introduced that creates or risks creating the perception that there is a parental
right to substantially shared or equal time for both parents.16 The Law Society concurred,
concluding that such presumption risks subordinating a childs best interests to the
parents expectations of equal rights.

3) Should there be a presumption in favour of shared residence?

According to research, shared residence seems to be mostly beneficial for children,
except in some cases. But does that mean that there should be a presumption in favour of
shared residence? Such a presumption would mean that whatever the circumstances,
shared residence would become the norm unless one of the parents (or the children) rebut
the presumption.
A strong argument against this presumption comes from two different realisations:
circumstances change, and those changes are better dealt with by people who have been
part of the original decision-making process. As it was held in Holmes-Moorhouse v

16

Norgrove, David, Family Justice Review: Interim Report, March 2011. Online:
(http://www.justice.gov.uk/downloads/publications/moj/2011/family-justice-review-interim-rep.pdf).
Last
accessed on Feb. 17th, 2013.

Richmond-Upon-Thames London Borough Council [2009]17, Not only that, the

arrangements made when the couple separate are bound to have to change over time, as the
children grow up and their own and their parents circumstances change. Parents who have
been able or helped, through mediation or in other ways, to agree a solution at the outset
are more likely to be able to negotiate those changes for themselves, rather than to have to
return to court for further orders.

The courts opinion on this question has changed over time. In 1988, the Law
Commission saw no reason why shared residence orders should be actively discouraged18.
However, the courts seem to think that shared residence orders were not their best option.
In Re H (A Minor)(Shared Residence) [1994]19 the Court of Appeal had held they should
be made only in exceptional circumstances; in A v. A (Minors)(Shared Residence Order)
[1994]20, the judges concluded that the orders should only be made if there was a clear
positive benefit for the child.
However, a judgment in 1991 had highlighted the importance of the best interest
principle. In Re S (Custody) [1991]21, the Court of Appeal decided that there should be no
presumption in favour of any parent. The childs welfare was the first and paramount
consideration: there is no legal presumption in favour of one parent over another, even
though in practice a small child is usually better off with its mother, and the judge was
wrong to prefer his discretion over the magistrates.
This was confirmed in 2001 in D v. D (Shared Residence Order) [2001]22, where the
Court of Appeal held that it was not necessary to show that exceptional circumstances

17

Holmes-Moorhouse v Richmond-Upon-Thames London Borough Council [2009] UKHL 7.

Report on Custody and Guardianship (No 172, 1988).
19
Re H (A Minor)(Shared Residence) [1994] 1 FLR 717.
20
A v. A (Minors)(Shared Residence Order) [1994] 1 FLR 669.
21
Re S (Custody) [1991] 2 FLR 388.
22
D v. D (Shared Residence Order) [2001] 1 FLR 495.
18

existed before a shared order could be granted; and neither was it necessary to show a
positive benefit to the child. The Court of Appeal held that what must be shown is that the
shared residence order is in the childs best interests in accordance with the welfare
principle. In this particular case, the shared residence order was necessary to lessen the
animosity between the parties, hence benefitting the child.

Those cases highlight the growing importance of the childs welfare as mentioned in
s1 CA 1989: the childs welfare shall be the courts paramount consideration. The courts
are actually expected to take into account three different principles when they exercise
their powers to make a residence order, all mentioned in s1 CA 1989: the welfare principle
(s.1(1)), the no delay principle (s.1(2)) and the minimum intervention principle (s.1(5)).
None of these principles is more important than the others.
The no delay principle is that any delay in determining the question is likely to
prejudice the welfare of the child.23 The courts should take their decision as quickly as
possible considering the two other principles. The minimum intervention principle means
that the court should refrain from making a decision if this decision would be in the
detriment of the child, or if making it would make no change to the child.24
As far as the welfare principle is concerned, s1(3) CA 1989 gives a list of factors the
court should take into account while making their decision. For example, in Re F (Shared
Residence Order) [2003]25, a shared order was made even though the parents homes were
a considerable distance apart. In Re M (Residence Order) [1998]26, the children needed to
be kept together and they wished to spend time with each parent and needed to enjoy the
benefits of being with both parents; Wall LJ held it was a paradigm case of where a

23

Children Act 1989, s1(2).

Children Act 1989, s1(5).
25
Re F (Shared Residence Order) [2003] EWCA Civ 592, [2003] 2 FLR 397.
26
Re M (Residence Order) [1998] EWCA Civ 66.
24

shared residence order should be granted. In Re A (Shared Residence: Parental

Responsibility) [2008]27, the order was made to confer parental responsibility on a man
who was not the biological father of the child.

In 1991, it was written in the Children Act 1989 Guidance and Regulations28 that it
is not expected that [shared residence order] would become a common form of order, but
that it had the advantage of being more realistic in those cases where the child is to spend
considerable amount of time with both parents. Years later, Stephen Gilmore29 analysed
that the courts approach to shared residence orders is unclear, but that childrens views are
important. It appears that indeed, each case needs to be approached considering its own
facts, and be decided for the childs best interest. A presumption of any kind does not do
so.

27

Re A (Shared Residence: Parental Responsibility) [2008] 2 FLR 1503.

Children Act 1989 Guidance and Regulations, Volume 1 (1991), Court Orders.
29
Gilmore, Stephen , Court decision-making in shared residence order cases: a critical examination (2006)
CFLQ 478.
28

Legislation:
- Children Act 1989.
- Children Act 1989 Guidance and Regulations, Volume 1 (1991), Court Orders.
- European Convention on Human Rights 1953
- Family Law Reform Act 1969.
- Human Rights Act 1998.
- United Nations Convention on the Rights of the Child 1989.
Case Law:
- A v. A (Minors)(Shared Residence Order) [1994] 1 FLR 669.
- A v. A (Shared Residence) [2004] EWHC 142 (Fam), [2004] 1 FLR 1195.
- D v. D (Shared Residence Order) [2001] 1 FLR 495.
- Holmes-Moorhouse v Richmond-Upon-Thames London Borough Council [2009] UKHL
7.
- Hoppe v. Germany (Application No 28422/95) [2003] 1 FLR 384.
- Re A (Shared Residence: Parental Responsibility) [2008] 2 FLR 1503.
- Re F (Shared Residence Order) [2003] EWCA Civ 592, [2003] 2 FLR 397.
- Re H (A Minor)(Shared Residence) [1994] 1 FLR 717.
- Re M (Residence Order) [1998] EWCA Civ 66.
- Re P (Children)(Shared Residence Order) [2005] EWCA Civ 1639.
- Re R (A Minor)(Contact) [1993] 2 FLR 762.
- Re S (Custody) [1991] 2 FLR 388.
Articles:
- BAUSERMAN Robert (2002), Child adjustment in joint custody versus sole-custody
arrangements: a meta-analytic review. Journal of Family Psychology 2002, Vol 16 No 1,
91-102.
- CASHMORE, Judy and PARKINSON, Patrick, What Responsibility do Courts Have to Hear
Childrens Voices? 15 International Journal of Childrens Rights 43 (2007).
- COLLIER, Richard (2001) 'In search of the good father: law, family practices and the
normative reconstruction of parenthood', 22 Studies in Law, Politics and Society 13369.
- Family Justice: The Operation of the Family Courts, HC 116-1, March 2005.
- GILMORE, Stephen , Court decision-making in shared residence order cases: a critical
examination (2006) CFLQ 478.

- NORGROVE, David, Family Justice Review: Interim Report, March 2011. Online:
(http://www.justice.gov.uk/downloads/publications/moj/2011/family-justice-reviewinterim-rep.pdf). Last accessed on Feb. 17th, 2013.
- Parental Separation: Childrens Needs and Parents Responsibilities (Cm. 6273, 2004,
Ministerial Foreword)
- PARKINSON, Patrick, SMYTH Bruce (2003) When the Difference is Night and Day: some
empirical insights into patterns of parent-child contact after separation. 8th Australian
Institute of Family Studies Conference.
- PEACEY, Vicky, HUNT, Joan, Problematic contact after separation and divorce,
Gingerbread, July 2008.
- Report on Custody and Guardianship (No 172, 1988).
Books:
- ALSTON, Philip, The Best Interests of the Child: Reconciling Culture and Human Rights,
Oxford, 1994.
- BAINHAM ET AL (eds.), Children and their Families: Contact, Rights and Welfare (2003)
Hart Publishing.
- FARRELL, Warren, Father and Child Reunion: How to Bring the Dads We Need to the
Children We Love (2001) Tarcher.
- FORTIN, Jane, Children's Rights and the Developing Law (3rd edn), Cambridge, 2009.
- HALE, PEARL, COOKE and MONK, The Family, Law and Society: Cases and Materials
(6th edn), Oxford University Press, 2008.
- WOLCHIK

ET AL,

(1985); Maternal Verses Joint Custody: Childrens Post-separation

experiences and adjustment