FNF was pleased that the Chief Executive of The Children and Family Court Advisory and Support Service (CAFCASS) was willing to talk to our Volunteers conference on 3 July.
This - and the response our volunteers gave him - shows the mutual respect there ought to be.
His presentation is on this website. Click here for PowerPoint or HTML version.
CAFCASS is the crucial organisation in family division. When parents cannot agree the living arrangements for their children and go to court, CAFCASS is asked to investigate the family and make recommendations.
Judges rarely change their recommendations.
The arrangements made by parents who do not go to court are made in the shadow of the decisions imposed in contested cases.
It is often said that 90% of parents 'agree' parenting arrangements. Some might 'agree'. Rather more, we suspect, take advice about what will happen if they go to law and decide to 'go quietly'.
CAFCASS is the key agency in making any change in parenting in divided families. If they recommended more equal care, the rest of society would follow.
The research is that the majority of Non residential parents want to see more of their children than they are allowed, and the majority of children want to see more of their 'second parent' than they do.
The Equal Opportunities Commission report that fathers now provide nearly a third of all parental childcare. No-one has seen any need to investigate the parenting time arrangements in court orders, but the trend seems to be about one eighth of the child's time.
Many children at a time of stress and pain, and where their residential parents will have more demands on them, must find their time with their 'other parent' slashed. The distress of - and damage to - children and their excluded parent is considerable.
CAFCASS is not the only agency in keeping these children and parents apart, but it could be the key one.
True, there is now a presumption that in the 'standard case' visits every fortnight and for some of the holidays are to be allowed. This is progress. This presumption is contested by domestic violence and other campaigners, holding that this 'right' is awarded too often. From our point of view, there still appears a presumption against allowing both parents to have serious involvement, rather than one getting residence and the other being allowed to have visits.
There is progress in this, but painfully slow.
We get reports from our members of excellent work by CAFCASS staff. We get rather more complaints. We naturally only see one side, but too many of them are from people who otherwise seem reasonable for them to be dismissed. Given the 'normal order' we would expect NRPs who are happy not to have much involvement with their children will be satisfied and those who want to be full parents not to be.
We also know of the extent of bias in the areas from which CAFCASS workers come. Historically this was the Probation Service, but there are also links with social work. To see the needs of children in ways that are not biassed by gender stereotypes goes against the trend of most training and writing in social work and probation.
Most shared parenting organisations want to see CAFCASS abolished. FNF does not. Nor.is it likely to happen. Whatever happens 'at the top', there will be a need for someone to make recommendations to the court, and if one 'abolishes CAFCASS' one will probably not abolish its staff, or the values that they impose on families. These will simply re-assemble in some other form to carry on doing the same thing in the same old ways.
Our relationship with CAFCASS leadership has been, and remains, 'friendly criticism'. We agreed with Anthony Hewson, the ex chair, over most things. He failed to turn the organisation around - possibly because he did not recognise how nasty public service and gender politics is compared with private business.
We want to support the successor board in turning the organisation around. Sadly, they have spend much of their time addressing organisational matters and not their service to their users. There has been change here, but insufficient.
We want to see action at two levels, in strategy and in 'operations'
In strategy CAFCASS should cease to be - principally - a cog in adversarial proceedings between parents. It should be a preventative and support organisations for parents making arrangements for their children. The courts would only be used when non-adversarial methods had failed. This requires a seimic change in their resources, training and attitude. This should be financed in FNF's view by reforms in legal aid. This money poured into family division makes things worse. It should be available for adversarial proceedings only in exceptional cases. The rest should go into CAFCASS and other helpful services.
In operations, the board needs to address urgently the attitudes of some of its staff. There needs to be guidance, perhaps based on documents that nearly all family organisations signed up to (at FNF's instigation) years ago. Guidance should ensure that residence orders are given to both parents unless there are contra-indications, and that children got serious involvement of both their parents, again unless there are cogent reasons otherwise. There also needs to be a dramatic increase, and change in stance, in training. Prejudice and discrimination needs to be tackled robustly, and staff need to be equipped to base their intervention on full knowledge of children in general and of the particular children they are dealing with in the families they report on.
John Baker
Everyone has the right to conduct their own case. Many are forced to do so for financial reasons - lawyers are notoriously expensive, and Legal Aid is available only to the few. Others choose to represent themselves for a variety of reasons, most often dissatisfaction with the standard of service (or integrity) they have experienced from legal professionals working in family law.
There is a guide to being a Litigant in Person (including costs) available from the Court Service website.
Making an application under the Children Act 1989 is fairly straightforward. Obtain a Form C1, available from the Court Service website or a County Court or Family Proceedings Court. Several orders (e.g. Contact and Parental Responsibility, or Residence and Prohibited Steps) can be applied for on the same form for a single fee of £120 at a County Court or £30 at a Family Proceedings (Magistrates) Court (2005 rates), which must be paid when lodging the completed form at the court office. There is no charge for jobseeker or income support "clients".
You will need at least three copies of the completed form - one for the court, one for yourself, and one for service upon each respondent (there will normally be just the one). Once the application fee has been paid and a case number issued and entered on the form you should 'serve' a copy on the respondent (by hand or send by first class post). You may also be required to enclose a 'Statement of Service' form supplied by the court.
If you have difficulty getting to the court in office hours it may be possible to make and pay for the application by post. Telephone the court office for details of local practice.
An application can be filed at any Family Proceedings or County Court (or at the Principal Registry of the Family Division in London). The case will normally be heard at the nearest court (of the same level) to where the child is living.
If the matter is particularly urgent (for example, if the child has been removed suddenly from the family home, or if there is a possibility that the child may be taken overseas) you should make the application on Form C2, indicating that some sworn oral evidence should be heard and advising the court of the likely time needed (45 minutes plus) - you may wish to have residence or contact ordered in the interim between the initial hearing and the final outcome of the case. If the case is of high urgency you may be able to get an initial hearing before the 'judge of the day', and where a child has suddenly been removed from the family home and established school the court may order an immediate return in the child's best interests. If the case has been heard in the absence of the other parent then it is likely that only an interim order will be considered and there will be another hearing so that the other side can have their say.
If the address of the other parent (and therefore any children) is unknown you should still make an application and seek an early hearing, at which you will need to ask for a Seek and Find Order under section 33 of the Family Law Act 1986.
If a Residence Order or other order restricting the child's removal is breached then you should make an application on Form C3, and ask for an immediate ex parte hearing under section 34 of the Family Law Act 1986.
A litigant in person should arrange where possible for the assistance of a McKenzie Friend. This is a person who agrees to assist the litigant in court by taking notes, organising papers and quietly offering advice.
After making an application on Form C1, you should receive notification of a court date within about three weeks. The first 'directions' hearing is normally kept very short, and is generally used only to check which matters are in dispute.
Some courts may attempt a 'conciliation' appointment at the first hearing, with either the judge or an in-house CAFCASS Officer seeking agreement between the parties. It is, of course, in your interests to resolve conflict where possible, but any agreement reached will not be legally binding unless enshrined in a court order.
In most cases, all that will happen at the first 'directions' hearing is that a Children and Family Reporter will be appointed and directed to produce a welfare report. This can take three months or more and is the main cause of delay in Children Act 1989 cases. You will be interviewed by the appointed CFR and should endeavor to make a good impression - the welfare report is almost always decisive, and judges have a duty to take any recommendations made in it very seriously.
In most areas it is common practice for another directions hearing to follow the filing of the welfare report (if you have not received a copy of the welfare report you should point this out in court). At this hearing the parties will normally be ordered to file statements of evidence by a particular date, and a date may also be set for a 'final' hearing. It is important to ask that the CFR should attend the final hearing if you wish to dispute the recommendations in the welfare report - a judge may not depart from them unless the CFR has an opportunity to defend them.
When you are ordered to make a Statement of Evidence the court will fix a date by when it must be filed. Sometimes the applicant is required to file first (with the respondent able to reply to the detail) but in other cases the court may order that both parties file simultaneously. If you do not receive a copy of the other side's statement by the specified date you should contact the court office and ask for a copy. It is not, however, unknown for statements to be served at the door of the court on the day of a hearing - if this happens, ask the court for time to read and consider the evidence before proceeding with the application.
Family proceedings are generally conducted with less formality than criminal cases. As long as you are polite and respectful (and do not waste time) you need not worry too much about procedural matters - a litigant in person is not expected to know the rules inside out, and the opposition's legal representative (if any) may even be under pressure to explain them to you. But there is no substitute for experience, and acting as a McKenzie Friend to others before your own case reaches a final hearing is a good way of getting used to the way things work in court.
As the applicant, you will be expected to make the opening address. You should be as clear and concise as possible - spell out the nature of the application, the basic facts (e.g. the ages of the children, when you last saw them etc) and what it is that you want the court to do. You should also refer in general terms to any supporting Case Law or 'authorities'.
The 'other side' will then reply, and the presiding judge (who may or may not have read the written evidence) will probably ask questions in order to clarify any grey areas.
If the Children and Family Reporter is present then s/he will often be given the opportunity to respond to comments on the welfare report at an early stage in proceedings - the court will not wish to detain a CFR longer than necessary.
While custom and practice varies from court to court (and from judge to judge) there is no actual right to cross-examine a CFR. If the welfare report is unfavorable (e.g. recommending indirect contact or no contact) you will obviously need to challenge any inaccuracies or faulty reasoning - the court is under a duty to follow the recommendations in the welfare report unless a good reason can be shown for departure from them. It is important that you ask direct questions (do not make speeches) and that you remain polite and respectful.
In some cases the use of an Expert Witness may be necessary, but these are relatively rare. CFRs are considered to be independent experts (though they may receive little or no training).
You will have an opportunity to cross-examine the respondent. As this will, in most cases, be your former wife or partner (and the mother of your children) you will need to take extra care not to appear oppressive or vindictive. Again, you must ask questions and not make speeches or comments. In theory you are restricted to questions arising from the written evidence and welfare report, but the court will probably accept any question which can be shown to be relevant to the welfare of the child.
The other side may also choose to cross-examine you. You will be required to swear (or affirm) that your evidence will be truthful, and the judge may also ask questions directly. Whoever asks the question, the answer should be directed to the judge. Do not respond to provocation.
Never forget why you are in court - if the application is for contact then you are trying to see your children, not play at Perry Mason. It is important that you use any opportunity to reach an agreement, and there will often be recesses or lunch breaks where this may be attempted. The court, in most cases, would prefer disputing parents to settle the matter between themselves and is likely to rubber-stamp the wording of any Contact Order agreed between the parties. Note that Contact Orders can be very detailed - in fact, the one order to be avoided is the vague one which merely stipulates 'reasonable contact'.
The presiding judge has wide discretion regarding the conduct of the case, and all courts are under pressure to keep the use of court time (and taxpayers' money) to a minimum. At some stage the judge will want to wind up proceedings and either adjourn the case or make an order.
A closing address will be invited from both sides. At this stage you will need to cite any authorities that you wish to be considered, e.g. Re O (Contact: Imposition of Conditions), and you should have a copy each for the judge and the opposition. In many cases you will have discussed these matters with the opposition outside the court (and may have included a reference to them in your opening address), but unless a case is referred to overtly a judge may not consider it, and you will be less able to use it in any subsequent appeal.
Where a Contact Order is being considered the court will prefer to build on any agreement that is likely to work and may ask the opposing legal representative (if any) to draft the specific wording, possibly during a recess. Make a detailed note of any verbal agreement made outside court and check carefully as it is read to the judge. If it does not correspond to what you have agreed, say so.
When an order is made it is important to get a copy. It can take a little time between the making of the order and printing of it, and judges have been known to reconsider the exact wording in the interim. For practical purposes, only the written order supplied by the court office has any value.
After the case it may be possible to obtain a Court Transcript of the proceedings if it has been recorded (this service is not available for cases heard by magistrates). But the fact that something has been said in court is no guarantee that it will appear in the final authorised transcript.
There is a general right of appeal in Children Act 1989 cases. Grounds for appeal are few, however.
One trap to be avoided by the litigant in person is an order under Section 91(14) of the Children Act 1989, which prevents further applications being made without permission of the court. Once made, a 91(14) order can be very difficult to overturn.
Some fathers, having acquired an Contact Order, find that it is ignored by the mother. In these circumstances it may be necessary to return to court for Enforcement of the order.
Costs are increasingly being awarded in family cases. If you win a case, don't forget to ask for your costs - even as a litigant in person you may be entitled. If you lose, you should be ready to show why your application was not unreasonable. Any award of costs may be referred to Taxation, where an itemised bill may be challenged. Under recent changes in the rules, however, the time allowed for payment (in the absence of an agreement between the parties) has been shortened.
Shared Residence
Examples of shared responsibility were made by Wall J in the case A v A [2004] 1 FLR 1195 .
Examples of shared care Parenting Plans are here
In the overwhelming majority of cases in which a Residence Order is made, it is made in favour of one parent and a Contact Order is also made, framed to state that the child be "allowed" contact with the other parent.
One parent becomes the ‘residential parent’ and the other becomes the ‘contact parent’.
Over the years since the Children Act 1989 came into force (October 1991) many members of FNF have experienced the reality of becoming what is essentially a second-class parent, a contact parent, someone whom the resident parent "allows" their children to see.
FNF claims that this arrangement is quite unnecessary, was never the intention of Parliament and, most importantly, is often not in the best interests of the child.
Parliament’s intentions thwarted
The law, the Children Act 1989, which governs these orders, does not specifically state that this should happen.
In fact, it makes specific reference, under s11(4) of the Act, to a situation in which a Residence Order is made in favour of both parents, that is an order for what is commonly referred to as Shared Residence.
However, the relationship between ss 8 and 11(4) of the Children Act 1989 is frequently misunderstood and this misunderstanding has contributed very significantly to judges’, family court reporters’ (court welfare officers) and lawyers’ aversion to shared residence orders.
The common assumption is that s11(4) [see below for the precise wording of this section] has been tacked on, almost as an afterthought, and says, "By the way, it is just conceivable that shared residence orders might be made so we will allow for it". It is not s11(4) which gives authority for shared residence orders but s8 itself, for, in accordance with conventional statutory language the singular, rather than plural, is used in all instances where it is appropriate; child instead of children, parent instead of parents. The s8 definition reads:
"’a residence order’ means an order settling the arrangements to be made as to the person with whom a child is to live."
Equally well, it could have stated:
" … as to the person or persons with whom the child(ren) is / are to live."
Had this part of section 8 being written solely in the plural it would more accurately have indicated the real intentions of those who gave us the Children Act 1989 and thereby could have prevented many abusive sole resident parents from excluding the other parent in full or in part from their children’s lives.
The history of residence orders is not simply of academic interest since the bare skeleton of statute law which is the Children Act 1989 has been developed, refined and given flesh over the past decade through interpretation expressed in published judgements.
The most significant recent development occurred in November 2000 with a Court of Appeal judgement in the case referred to as D v D (Shared Residence Order) which FNF claims has resulted in the concept of the residence order being re-evaluated and re-directed back towards that which was originally intended by those who framed the legislation.
The message is: the law as regards residence orders is not fixed. It has changed and will probably continue to change.
Hopefully, D v D may be followed by further positive steps, beginning with a willingness by judges around the country to make more shared residence orders in existing arrangements where both parents have the child ‘living’ with them for substantial part of the time.
Sole residence orders have become one of the main obstacles to a father maintaining a proper relationship with his child following separation or divorce since they bestow upon the mother with residence a power which was never intended.
Parliament’s intention was not to create two classes of parents following divorce, but exactly the opposite. The concept of Parental Responsibility which the Act introduced, emphasising the enduring, equal and hopefully co-operative nature of parenting following divorce and separation, was intended to define a parent’s relationship with his or her child and provide the foundation for other orders which may be necessary.
However, in practice, the idealistic concept of parental responsibility has been diluted tremendously. The emphasis shifted almost immediately to focus on the residence order, an emphasis which recognises the real-life situation and which enables an unco-operative residential parent to assume almost total control of a child’s life and restrict or prevent contact with the other parent.
Section 11(4) of the Children Act states:
"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."
A Shared Residence Order (a residence order made in favour of two or more persons) is therefore not necessarily an order requiring equal sharing, of the child spending equal amounts of time with each parent.
The wording of section11(4) of the Act was lifted directly from the Law Commission’s 1998 Report, Law Com No. 172, which recommended to Parliament that Residence Orders:
"should be flexible enough to accommodate a much wider range of situations. In some cases, the child may live with both parents even though they do not share the same household. It was never our intention that children should share their time more or less equally between their parents. Such arrangements will rarely be practicable, let alone for the child’s benefit.
However, 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 be discouraged. More commonly, however, the child will livewith both parents but spend more time with one than with the other." [our emphasis added].
Referring to a scenario in which a child spent a third of his time with one parent and two thirds with the other the Law Commissioners remarked:
"It is a far more realistic description of the responsibilities involved in that sort of arrangement to make a residence order covering both parents rather than a residence order for one and a contact order for the other."
This was the reasoning behind s8(1) Residence Orders.
But, shared residence orders, even those where the child was not to spend more or less equal time with each parent, an arrangement the Law Commissioners were happier about, were actively discouraged from the outset. The discouragement initially emanated from the guidance notes published by the Department of Health, without reference to Parliament. The good intentions of Parliament were subverted.
In those guidelines it was stated:
"It is not expected that it [a shared residence order] will become a common form of order."
This phrase was subsequently seized upon by reactionary members of the judiciary and used to discourage shared parenting supported by shared residence orders, the courts only being prepared to make shared parenting orders in situations where there was total agreement and a high level of co-operation between the parents. Of course, in such instances the parents would have no need, nor wish to have their arrangement sanctioned by a court order and in any event the court would in such circumstances have to have regard to the non-intervention principle of the Children Act 1989.
The DoH’s attitude to shared residence order can in part be understood by reminding ourselves that at this idealistic stage, the principle of enduring parental responsibility was regarded as a much more powerful tool than the residence order. On the first page of the DoH 90-page Introduction to the Children Act it is stated:
"That arrangement [continuing parental responsibility] aims to emphasise that interventions by the courts where there is family breakdown should not be regarded as lessening the duty on both parents to continue to play a full part in the child’s upbringing." [our emphasis]
Just over a year after the Children Act 1989 came into force, in a Court of Appeal judgement, Re H (A Minor)(Shared Residence), involving a London Branch FNF Committee member, Purchas LJ, unwisely applying case law from pre-Children Act 1989 days, declared that shared residence orders, "would rarely be made and would depend on exceptional circumstances."
The door was closing.
In July 1993 the Chairman of FNF’s London Branch obtained a shared residence order in the Family Division in circumstances where the parents were in disagreement, each being highly critical of the other’s parenting style. His Honour Judge Callman made the order to make clear to the parents that when their daughter was with them the other parent had no right to interfere or determine how they parented the child.
This case, not tested in the Court of Appeal, has been paraded before many judges by FNF members seeking shared residence orders, but it has simply explained as being the exception which proved the rule – that rule being that shared residence orders will only be made in exceptional circumstances.
The following year (February 1994) in the Court of Appeal, A v A (Minors: Shared Residence Order) underlined the prevailing view that shared residence orders were "unusual" and were unlikely to be made if there were still unresolved issues between the parties, including the amount and nature of any contact.
Naturally, separating parents, particularly with a father seeking a shared residence order, probably with the mother opposing this and wanting a sole residence order in her favour, would have unresolved differences over contact.
Lady Justice Butler-Sloss said, "It must be shown that there is positive benefit to the child concerned for a s 11(4) [an order specifying how the time was be allocated between the parents] order to be made." Although it has been claimed that the requirements had been eased since the "exceptional" had now become "unusual", the door marked ‘Shared Residence Orders’ was practically shut in fathers’ faces by this judgement, made just two and a quarter years after the Children Act 1989 came into force.
D v D: a minor correction
The door has remained firmly closed for nearly eight years, until Dame Butler-Sloss, now President of the Family Division, along with Lady Justice Hale revisited the matter of shared residence and upheld a decision made in Watford County Court to make a shared residence order in D v D.
In her judgement Dame Butler-Sloss clearly articulated that she believed that the judge in Watford County Court had potentially been inhibited from making the shared residence order he thought appropriate because he felt he had to take heed of her comments made some eight years earlier in what remained the leading authority (A v A). Dame Butler-Sloss recognised that unless she addressed this matter judges would continue to feel bound by her previously expressed views which she now considered a little dated.
In her judgement she explained, using some of the Law Commission’s words from 1988, that the Court of Appeal should not impose restrictions upon the wording of the statute not actually found within the words of the section, and that flexibility was important as regards s 8 orders (the section in which residence orders are defined).
She stated that she was no longer certain that a ‘positive benefit’ to the child had to be demonstrated for the shared residence order to be made – something she had been certain of previously. However, she stated that it had to be demonstrated that a shared residence order was "in the interest of a child". Having given this, she then took something back by quoting from the Department of Health’s "very helpful" guidance, which FNF would claim does exactly what she claimed the Court of Appeal should not do, namely, imposes restrictions not actually found within the statute. She quoted:
"… it is not expected that it [shared residence] would become a common form of order partly because most children will still need the stability of a single home …".
Further on in the same quoted paragraph a positive element appeared:
" … [a shared residence order] removes any impression that one parent is good and responsible whereas the other parent is not."
To those coming new to this area, it must seem strange that post-separation parenting is so dominated by the law and lawyers’ decisions as to what is right for children and parents, and focuses so little upon the psychology and sociology of families and child development.
In examining legal decisions, far too little thought is applied to the premises upon which these decisions rest. In the previous paragraph the DoH’s expressed view, unsupported by any reference, that children "will still need the stability ofa single home" is a mountain as compared with whether a word in s8 should be plural or singular.
Families Need Fathers challenges that Department of Health assumption and believes that all family court reporters and judges who attempt to utilise this canon should be required to substantiate the reasoning behind it and provide evidence in support of their view.
The presumption of shared residence
As expressed in its Articles of Association, and in its 1994 publication, The Presumption of Shared Residence, Families Need Fathers supports the intentions of those behind the Children Act to promote shared parenting following separation or divorce.
However, Families Need Fathers believes that the best way to do this where court intervention is sought is through the making of shared residence orders and that in most instances the making sole residence orders mitigates against this aim.
Families Need Fathers believes that shared residence orders should be the norm and that sole residence orders should only be made where the situation warrants departing from this norm.
Families Need Fathers believes that there should be a presumption of shared residence, that this should be the starting point when parents separate, rather than the prevailing situation in which there is a presumption of sole residence (usually to the mother).
A presumption of shared residence, even a presumption of 50/50 time split of the residence, should be the starting point.
In many instances parties could move swiftly away from that starting point of equal time; for example, if one parent’s work commitments made such a split unrealistic; or there were geographical reasons, such as one parent living too far away from the child’s school for him to spend term time with that parent.
However, there is no practical reason why the order should not stipulate shared residence even should the percentage time spent with one parent approach single figures.
Naturally, if there was no contact between the child and a parent or no staying contact this would be reason enough for a sole residence order to be made, but if and when the situation improved and staying contact occurred, in the main there should be few obstacles to prevent that parent becoming a residential parent.
Advantages: practical and psychological
A shared residence order is not a panacea. For a father, perhaps having the ‘standard’ contact pattern of alternate weekends and half the school holidays and being frustrated at not having enough contact with his child, a shared residence order may not appear to make any difference. He would still have to demonstrate to the court that it would be in the child’s best interest for any new order to specify a longer period during which his child lived with him in his household, just as he would have to in order to vary contact upwards.
However, shared residence provides several advantages over the traditional residence / contact split.
A shared residence order emphasises to everyone the equal status of the mother and father. In the main, parents with residence orders tend to believe and act as though they are the primary parents and the parents whom they "allow" to have contact are somehow lesser parents. Some see this as an opportunity to take total control over their child’s life. Some fathers, restricted to short periods of time with their child, banished to the margins and labelled as a ‘contact parent’, also come to regard themselves as relatively unimportant in their child’s future.
A residence order would send a strong message to these fathers and support them in maintaining their commitment to remain involved in their child’s life. Though for many the time they spent with their child may not change the shift to becoming a ‘residential parent’ rather than a ‘contact parent’ would be significant.
In the case D vD the trial judge at Watford County Court was told that the father, who claimed to have the children for 38% of the time, experienced difficulties with schools and hospitals in obtaining information about his children and felt like a second-class parent. Many members of Families Need Fathers will identify with his experiences. Though parental responsibility is supposed to confer sufficient status and rights on a parent to deal with these situations, it is a legal concept which schools and health authorities still refuse to acknowledge despite the clearest guidance provided for them by government departments.
However, a parent with a residence order will immediately be treated as a ‘full’ parent, one entitled to make decisions and receive information about their child’s health and education.
Another practical advantage to be gained with shared residence would be the ability, conferred by s 13(2) of the Children Act 1989, to take the child out of the jurisdiction without the permission of the other parent of leave of the court for up to a month. A residential parent can do this, a non-residential parent can not. Nowadays with foreign holidays being the norm rather than the exception many ‘contact parents’ have to bow and scrape to be given permission by the residential parent, and in a significant proportion of cases that permission is withdrawn at the last minute and an emergency application has to be made to court to take the children on the booked holiday. Any fears that this would facilitate abduction could be readily dealt with if necessary by additional orders attaching conditions or prohibitions.
Language does colour our perception, and our children’s perception, as Lord Justice Ward recognised in his 1995 judgement in Re H (Shared Residence: Parental Responsibility) in which he stated:
"Here is was important that the boys retain the perception that they lived with their father when they did not live with their mother. Shared residence has a different psychological impact from residence with one, contact to another because, as contact is defined, it requires that the parent with whom the child lives, must allow the child to visit or stay with the other parent. Here it is necessary for the boys to know they lived with the respondent and they did not just visit him."
Many of our children develop the view, often deliberately promoted by the mother’s comments, that the father they visit is not a worthy parent, not a parent who the courts felt could be trusted sufficiently for them to live with – only to be loaned out to for restricted periods, and then only as long as the mother felt he was behaving himself. Shared residence orders would go a long way to counter such unhealthy negative attitudes.
Conflict
Some would argue that a shared residence order discourages conflict whilst others argue the opposite. Both arguments can be true and can be true to varying degrees in different situations with different families.
In any situation where there might be disagreement between two parties it is possible to deter conflict by giving one party so much power that the opposing party sees no chance of successfully challenging the powerful party and simply accepts his fate. Conflict is avoided, at the potential cost to fairness. This is no solution to disagreement within separated families.
Judges may be led to believe that disagreements over contact are resolved in many cases when the matter does not return to court. But the reality is, many fathers have been driven out of their children’s lives and have simply abandoned the hopeless struggle against an omnipotent residential parent. Conversely, if you give two protagonists equal strength they may fight for ever, but they may also recognise that in such circumstances co-operation and negotiation may be more productive than a conflict which cannot be settled between two equally powerful opponents. And of course, in disputes about children there is always the opportunity for the court to step in and resolve the differences.
Some residential parents oppose suggestions to increase contact since they regard any extension as slipping down the road to a situation in which the non-residential parent might just tip the balance and be in a position to apply for a change of residence with them ‘losing’ and tumbling down the slope to become a contact parent. If both parents already had residence this would not be a factor. Any proposed increase in contact might not be regarded with suspicion, as a tactic in a struggle for power conferred by the all-important residence order but would instead focus on the possible benefits to the child of increasing contact with the parent.
It is significant that in D vD the court was keen to make the shared residence order to lessen the parents’ animosity just as the judge at first instance had intended his order to do in A v A. Therefore it would seem that continuing animosity and also ongoing co-operation might be used successfully to argue the case for shared residence.
Families Need Fathers does not suggest that the controlling and excluding behaviour of so many mothers with residence orders is a product of gender, and recognises that were fathers routinely granted sole residence many of them would probably behave in a similar fashion.
The maxim, power corrupts and absolute power corrupts absolutely should be borne in mind when awarding residence to one parent, though perhaps John Steinbeck’s observation – that it is not the power itself but rather the fear of losing that power which corrupts – is more appropriate in these circumstances.
The solution lies with shared residence orders.
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case references
Re H (A Minor)(Shared Residence) [1994] 1 FLR 717 – Decided Dec1992
A v A (A Minor) (Shared Residence Order) [1994] 1 FLR 669 (Read the Times Law Report)
Re H (Shared Residence: Parental Responsibility) [1995] 2 FLR 883
D v D (Shared Residence Order) [2001] 1FLR 495
A v A (Shared Residence) [2004] 1 FLR 1195
See also the Shared Parenting Factsheet provided on the One Parent Families Scotland website.
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Updated 11 July, 2005
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