Tuesday, 22 April 2014

Shared Residence - Rumours of My Demise are Exaggerated

With the removal of residence and contact orders has emerged concern about whether the courts will see polar choices.... one parent named in the new child arrangements order being the 'person with whom the child lives' while the other parent will be 'the person with whom the child spends time or otherwise has contact'.

Does the new order mean that we've seen the death of shared residence? [Hyperventilate]

The anxiety is understandable as, under the old system, identical cases would have very different outcomes before different judges and in different courts. We know one ex President of the Family Court is opposed to children having two homes, who happened to be influential in House of Lords legislative debates... but remember, each judge may exercise discretion under the law, and there's nothing in the new Act wording which prohibits more than one person being named as having the child live with them.

As we've said before, we do not expect a huge change from the new legislation. It's a political fudge and a word change (at least when it comes to shared parenting or residence or contact being replaced by child arrangements orders).  The concepts of residence, shared residence and contact remain, just wrapped up in a single bit of paper.

So my friends... blow into that brown paper bag and bring the anxiety under control.

Draft orders suggest (quite clearly) that the option of the mother AND father having children live with them under a child arrangements order (albeit in different homes and at different times) can and likely will continue (albeit this will differ from court to court and judge to judge due to individual judicial discretion... no change there either... inconsistency will remain even when cases are identical).

My proof? A document called CAP04, setting out a draft structure for the new child arrangements order wording. At point 7, we clearly see the option for the court as either the mother, or the father, or both being named as the parties with whom the child[ren] will live.

I seem to recall Mr Justice Mostyn had a hand in the drafting of 'stock' order wording. Not all judges are stuck in 1970s parenting, and Mostyn has been quite clear in the past about shared parenting being common place.

As ever, the arguments will need to be advanced in favour of shared residence (albeit under a child arrangements order), and no doubt we'll still be citing the authorities of A v A, D v D and others for a good few years to come. So don't ditch your shared residence case law libraries (and we won't be ditching ours).

Now there is the risk that more cases will be shunted off to magistrates and legal advisers whose knowledge is not as great as more senior members of the judiciary, but it is YOUR job to remind them of the orders which can be made, and the authorities set down by the higher courts.

To read all of CAP04, click here.

To find our more about the new court process, child arrangements orders etc... open out web app by clicking the image below: