In April 2014, the Children and Families Act merged residence and contact orders into a single, child arrangements order. Within the new order, a judge can decide that a child lives with one parent, and spends time with, or otherwise has contact with the other. The order also allows for the child to live with both parents, albeit in different homes.
The draft child arrangements order template specifically allows for this, at paragraph 7:
That draft order can be found in our Draft Court Orders section.
A number of authorities (published judgments) set out the benefits of shared residence, and when making such arrangements might be considered by the court. Summaries of these are set out below, along with links to the full judgment (which can be downloaded and printed as a pdf.
To see how to use case law, to support your arguments in court, see our page on Skeleton Arguments.
D v D (Shared Residence Order) [2001] 1 FLR 495
After determining with whom a child should live, the imposition of a condition of where the primary carer should live was an unwarranted imposition. The court of appeal overturned the part of the earlier judgment which imposed conditions on where the mother could live.
"I am not certain that one does have to demonstrate a positive benefit [to the child] to make a shared residence order. One does have to demonstrate that a shared residence order is in the interest of a child in accordance with the requirements of section 1f the Children Act 1989"
Shared residence orders could be considered even when one parent was hostile to the idea.
Re A (Children) (Shared Residence) [2002] EWCA Civ 1343
A shared residence order need not only be made in exceptional circumstances, confirmed the authority and competence of both parents and should be considered where there was a relatively smooth passage of children between the parent´s homes, and the homes were in close proximity.
Re F (Children) [2003] EWCA Civ 592
A shared residence order may be made, even when parents live considerable distance apart (in this case, England and Scotland) so long as the children divide their time between two homes (this does not mean the equal division of time). Parents living in separate countries does not prevent the granting of a shared residence order.
A v A [2004] EWHC 142 (Fam)
The court found that a shared residence order ´removes any impression that one parent is good and responsible and the other is not, and has the benefit of being more realistic in those cases where the child is to spend considerable amounts of time with those parents´.
Lord Justice Wall further confirmed that shared residence orders may be made even when one parent is hostile to the idea (and otherwise the ´no-order principle´ would apply).
´If these parents were capable of working in harmony, and there were no difficulties about the exercise of shared parental responsibility, I would have …. made no order as to residence.´
C (A Child) [2006] EWCA Civ 235
´...the whole tenor of recent authority has been to liberate trial judges to elect for a regime of shared residence, if the circumstances and the reality of the case support that conclusion and if that conclusion is consistent with the paramount welfare consideration.´
Lord Justice Thorpe identified the following factors which, he considered, supported the making of a shared residence order:
Re P (Children Shared Residence Order) [2006] 1 FLR 309
Judgment not published, but parts recited in Re K (Shared Residence Order) [2008] EWCA Civ 526 (see below).
Re K (Shared Residence Order) [2008] EWCA Civ 526
"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 advantage of conveying the court´s message that neither parent is in control and that the court expects parents to co-operate with each other for the benefit of their children."
Re A (A Child: Joint Residence/Parental Responsibility) [2008] EWCA Civ 867
The mother and the step father began a relationship while the mother was still pregnant. The biological father had no involvement. The mother sought to relocate. The court awarded joint (shared) residence to the step father, which also gave him parental responsibility, in part to ensure his role was not marginalised in the future. The order was appealed, and the appeal rejected.
Also worth noting the further clarification of when a shared residence order might be made (and one not restricted to parenting time) and the following is quoted from this judgment:
On granting parental responsibility via shared residence orders:
´...In Re:H (Shared Residence: Parental Responsibility) [1995] 2 FLR P. 883, the Court of Appeal clearly stated that a shared residence order was an appropriate means of conferring parental responsibility upon a step father. [In] the much more recent case of R: G (Children) [2005] EWCA Civ P. 462, the Court of Appeal turned to the use of shared residence as a tool to ensure that the non-biological parent shared parental responsibility for the child concerned.
Parental Conflict not an obstacle to granting a shared residence order
´It is not the case, as has been suggested by Mrs R, for example, that conflict and parental acrimony are grounds to refuse to make an order for shared residence. In A & A (Shared Residence) [2004] 1 FLR 1195, Wall J (as he then was) made a shared residence order against a background of tremendous conflict between the parents that resulted in frequent applications to the Court.
On shared residence orders generally and psychological benefits to the parents
66. The making of a shared residence order is no longer the unusual order which once it was. Following the implementation of the Children Act 1989 and in the light of S.11(4) of that Act which provides that the Court may make residence orders in favour of more than one person, whether living in the same household or not, the making of such an order has become increasingly common. 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 by psychologically beneficial to the parents in emphasising the equality of their position and responsibilities.
Re W (Shared Residence Order) [2009] EWCA Civ 370
The judgment in Re W reaffirmed that unusual circumstances are not required before a shared residence order can be made, although there was the implicit suggestion that where the time the child spends in the two households is close to being equal, a shared residence order should be made. Also, that a shared residence order can be made as a consequence of one parent´s deliberate and sustained marginalisation of the other. The judgment further confirmed that it was a contradiction to grant a contact order to a person who has a shared residence order.
AR (A Child: Relocation) [2010] EWHC 1346 (Fam)
In this case, and with regard to the granting of shared residence orders, the Honourable Mr Justice Mostyn comments "Indeed such an order is nowadays the rule rather than the exception even where the quantum of care undertaken by each parent is decidedly unequal. There is very good reason why such orders should be normative for they avoid the psychological baggage of right, power and control that attends a sole residence order, which was the one of the reasons that we were ridden of the notions of custody and care and control by the Act of 1989." (The Children Act 1989 prior to the further revision in April 2014 which saw residence and contact orders merged to a single child arrangements order)
TCM Comment: While undoubtedly true in some regions, in some courts shared residence orders continue to be rarely made. With regard to the granting of shared residence, the approach of courts and individual judges is not consistent, and each judge has a ´wide ambit of discretion´ in deciding what arrangements to make for children.
It may be useful to refer both CAFCASS and the court to the judgment in AR (A Child: Relocation), which was made in the High Court, should they be leaning toward granting a child arrangements order with contact for one parent and the child being deemed to live with the other. It should be noted that the draft child arrangements order template allows for the order to state that the child lives with both parents, albeit in different homes.
T v T [2010] EWCA Civ 1366
Court of appeal back-peddled somewhat from Mostyn´s judgment in AR (A Child: Relocation) [2010] EWHC 1346 (Fam), that shared residence is now the rule rather than the exception. In T v T, Lady Justice Black clarifies the situation:
"26. In Re AR (A Child: Relocation) [2010] EWHC 1346 (Fam), Mostyn J said that a joint or shared residence order "is nowadays the rule rather than the exception even where the quantum of care undertaken by each parent is decidedly unequal". That, in my view, is to go too far. Whether or not a joint or shared residence order is granted depends upon a determination of what is in the best interests of the child in the light of all the factors in the individual case. However, it has certainly been established that it is not a pre-requisite for a shared residence order that the periods of time spent with each adult should be equal and nor is it necessary that there should be co-operation and goodwill between them and shared residence orders have been made in cases where there is hostility. Re A is an example of this as the parents were there said to be "at loggerheads"."
W (Children) [2014] EWFC B215
The case was heard in the Chelmsford Family Court. The Guardian supported an order for shared living arrangements and the mother had interfered with the interim contact arrangements leading to the father seeking a reversal of residence.
His Honour Judge Cochrane concluded that further litigation was not in the children´s best interests. He did however find that the mother the mother had caused harm to at least one of the children as a result of her depriving that child of a proper relationship with his father for a significant period in his life.
The judge directed that contact be progressed as previously ordered, with a penal notice attached. Further, the father was to retain the children´s passports, holidays were to be shared, and the mother was to inform the father of any medical matters in relation to the children. An order for shared residence within a child arrangements order was made, with overnight stays from Friday to Sunday on alternate weekends in favour of the father. Telephone contact was to happen in respect of the other parent when the children spent more than three days away from their care. Holidays abroad for a period of two weeks were allowed, but restricted to countries party to the 1980 Hague Convention on Civil Aspects of International Child Abduction. The children were to spend two hours with the parent who was not caring for them upon the day their birthdays fell due. The mother was prohibited from moving address without giving the father at least two months´ notice. CAFCASS were ordered to monitor contact. The parents must agree on choice of schools in the future.
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Family law information for parents whose children are resident in England and Wales
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