Can You Still Get Shared Residence?

We've been asked on several occasions recently whether you can still ask the court to make the equivalent of a shared residence order under the new style Child Arrangements Order.

The very simple answer is...

YES

...and our guides show you how. Click on the image [to the left] to be taken straight to our guide.

You can even double check we're right by looking at section 7 of the Draft Child Arrangements Order which you'll also find on our site.

We also have a library of case law related to Shared Living Arrangements.

There was a change to "shared residence" which came about due to the amendments to the Children Act 1989 which were introduced by the Children and Families Act 2014. These amendments now allow the same enforcement provisions to be made in respect of shared residence (now shared living arrangements albeit otherwise the same as shared residence was prior to the amendments)  as there were before (and still are) to enforce contact.

We've also made our Shared Living Arrangements guide more prominent on our Applying To Court page.



Why consider shared living arrangements for your children?

Social research shows that children fare better emotionally, psychologically, and developmentally when parents separate but share care.

Go on... if you must go to court to settle arrangements, consider shared living arrangements... do it for the kids...

Intractable Contact Disputes: Important New Case Law`

A (A Child) [2013] EWCA Civ 1104
In this case, the court had acknowledged that it was the mother's intractable and unreasonable position which was the bar to contact, but felt helpless to intervene. The case came after years of returns to court. An important judgment, where the trial judge had made an order allowing only indirect contact for the father, restricted to Christmas and his daughter's birthday. This was an intractable contact dispute, caused by the mother's hostility to contact. While not an alienation case per se (albiet the child is clearly torn between her own wish for contact and loyalty to the mother and her opposition), McFarlane LJ upheld the approach taken in Re S (Transfer of Residence) [2010] EWHC 192 (Fam) that while noting the importance of a child's wishes and feelings, the court must consider too whether those wishes and feelings are rational and reasonable.

MacFarlane endorses Munby LJ's guidance in Re L-W (Children) [2010] EWCA Civ 1253 that there needs to be judicial continuity, judicial case management including effective timetabling, a judicially set strategy for the case; and consistency of judicial approach. He goes further in paragraph 60:

´If, as part of that strategy, the court makes an express order requiring the parent with care to comply with contact arrangements, and that order is breached then, as part of a consistent strategy, the judge must, in the absence of good reason for any failure, support the order that he or she has made by considering enforcement, either under the enforcement provisions in CA 1989, ss 11J-11N or by contempt proceedings. To do otherwise would be to abandon the strategy for the case with the risk that a situation similar to that which has occurred in the present case may develop; to do otherwise is also inconsistent with the rule of law.´

The father's appeal was successful. While the outcomes recommended by the trial judge were not necessarily in themselves wrong, the systemic failures over a period of years did amount to a breach of the child´s and father´s right to family life under the Equalities and Human Rights Act and MacFarlane suggested the involvement of a multi-disciplinary team to progress matters. The matter was moved to the High Court for the father´s application for contact to be reheard.

It's important to consider that the Human Rights argument was supported by the unique facts of this case. It would be wrong to assume any inference as to a principle being established that the courts must uphold a father's right to family life (in Children Act cases, child welfare will always be the court's paramount consideration, and the litigant should focus on child welfare arguments first). In this case, the child wanted contact (albeit her loyalty was torn), the mother clearly opposed contact and there were case management failures.

There is a growing body of case law to support a parent faced by the other parent's hostility to contact. Things remain difficult, as the circumstances of this case are not uncommon.

The full text of the cases Re S (Transfer of Residence) [2010] EWHC 192 (Fam), Re L-W (Children) [2010] EWCA Civ 1253 and A (A Child) [2013] EWCA Civ 1104 can be viewed in smartphone/tablet friendly format on our online Family Law Application. We have also included A (A Child) [2013] EWCA Civ 1104 as a download in pdf format should you wish to refer to it in evidence.

Nervous Mums and Contact: Pre-emptive Planning

When parental relationships break down, and especially when the children are very young, we commonly see mums opposed to contact, with fears that the father is naive and the child may come to some harm in his care. In many cases, we suspect that there may be a degree of post-natal depression at the root of the anxiety. In some, the mother simply wishes to punish the father, or views the child as 'hers'.

That same baby, or toddler, may often spend a night at grandma and grandpas so mum can have a night off. Fair enough... but where the dad is concerned, when mum raises her anxiety at court, the judge can take an overly cautious approach.

We have seen solicitors recommend to their clients that they seek contact in a supervised setting, such as a contact centre, and in some cases pro-actively, and before the mother has voiced any serious concern (we saw this first hand when a mum asked us to go with them to meet their solicitor). The court will often take a cautious approach, endorsing the supervised contact until such time as evidence has been heard (which may take months).

Often there are no 'real' risks. No evidence of the child coming to any harm when the father has cared for the child in the past, but the First Hearing and Dispute Resolution Appointment is often very brief... the legal equivalent of triage, obscuring the fact that the waiting list to resolve the contact dispute can take many months (and in some cases years).

In the more extreme cases, we have had dads come to us, where contact has been in a contact centre for a number of years, despite there being no real welfare concerns.

When you step back and look at parenting objectively, it isn't rocket science, and all parents start out as amateurs (and if we're honest, we remain amateurs dealing with new situations all the time). There would be outcry if new mums were told that they couldn't remove their baby from the maternity ward until there had been three months of contact at a centre, where 'responsible adults' were available to help, or supervise and report on how mum managed child care, and the mum had to prove her capability before the state stopped its monitoring and restrictions.

What help can be given to the poor old dad who's faced with a mum refusing contact, where the situation seems completely out of his control, and the solicitor's letter drops on his doormat offering contact in a centre, or under mum's beady gaze at her house, or not at all... and telling him to seek legal advice.

1. If an offer for contact is made before matters get to court, accept it. Ensuring you continue to see your child takes priority, as does keeping the bond intact. If mum is squarely opposed to unsupervised contact, it's likely the matter will have to go to court for resolution, and that may take some time, as you have to attempt mediation first. Better to have some contact, than none at all.


2. Acknowledge the solicitor's letter. Say something complimentary... 'I know Stephanie is anxious, but I also know we both love Oscar, and I hope that we can work things out together.' Go on to suggest mediation, and be pro-active in organising it yourself. Saying the mum is a good parent in that letter doesn't weaken your position, and if fear of a battle over residence is exacerbating her anxiety, that acknowledgment may draw some heat out of her fears.


3. There will be a delay as you attempt mediation first, and then if this fails, a further wait while you apply to court and wait for the First Hearing and Dispute Resolution Appointment (the first hearing at court). Use this time to your advantage...

One of the most effective things you can do during this time frame is to book yourself on an early years first aid course. Courses are run by St John's Ambulance and by the British Red Cross. The St John's Ambulance course is run over two days, and costs £105(+VAT), while the British Red Cross courses are run over a single day and cost £37.50(+VAT). Take back a little control... you can be booked onto a course in 10 minutes without leaving your sofa!

The day before the First Hearing and Dispute Resolution Appointment, have a position statement prepared with your certificate in early years first aid attached to it. Make sure it's under the judge's nose on the day of the hearing! An alternative is attending a parenting class.

Going on one of these courses helps in a number of ways:

• it may lessen the mother's anxiety (if anxiety rather than hostility is at the root of your contact being restricted;
• when the matter goes to court, regardless of whether the mother is hostile or anxious, you present yourself reasonably, as someone who has acknowledged mum's anxiety, and taken reasonable steps in the hope this makes mum feel less anxious;
• you show the court your commitment to being involved in your child's care;
• you can present the court with evidence, at that first hearing, to show you are capable of dealing with emergency situations, and better qualified than most parents!
• you give the judge some added reason to 'nudge' the mother to accept unsupervised contact, and you can suggest to the judge that having had sight of this evidence there are grounds to make an interim contact order there and then;
• regardless of the tactical advantages, for a modest fee you learn skills which will reassure you, may help save your child's life one day, and the courses are quite interesting.

The facts of the case, and the nature of any allegations will of course affect whether the court is prepared to agree unsupervised contact from day one. Supervised contact can be helpful sometimes, in reassuring the court that the father presents no risk to the child, and in this, can be a progressive step forwards.

It still surprises me though that we see children's contact being restricted when the allegations are minor, and the issue is little more than mum being anxious at being away from the child. For mum, that anxiety may be real, even if the risks aren't. In 2008, Eleanor Fowler of NYAS gave the statistic that 75% of cases referred to their contact centre went on to have unsupervised contact... leaving the question unanswered as to the necessity in the first place.

The dad can help himself by taking a pro-active and positive approach while avoiding the pitfall of getting stymied in counter-allegation, outright warfare, and pointless arguments over gender bias. Deal with the issue... address the allegation... offer a positive solution and move on! The court will likely favour such an approach.

I'll leave the final words to Mostyn J, in the case AR (A Child: Relocation) [2010] EWHC 1346 (Fam):

"On the facts of this case it is clear to me that supervised contact would only have been appropriate if there was the clearest and most compelling evidence that in some way S's best interests would be jeopardised by unsupervised, normal contact. Given the terms of the Strasbourg jurisprudence to which I have referred, it is almost as if there is a presumption in favour of normal contact and it is for those who say it is inappropriate to prove by clear evidence why this is so."

By Strasbourg jurisprudence, Mostyn J refers to the European Convention on Human Rights, and specifically, the right to family life. For the legal advisor (and a number of judges!), it's worth reminding ourselves that a decision to order supervised contact must be supported by evidence (Re M (Contact: Restrictive Order: Supervision) [1998] 1 FLR 721), and that if there is sufficient information available to the judge for them to order contact, despite the possibility of their granting a different order at the end of a final hearing and having heard evidence, the judge may make an order for interim contact (Re D (Contact: Interim Order) [1995] 1 FLR 495).

That certificate in early years first aid, along with other evidence of your involvement in pre-separation parenting is information which may assist the judge in granting your child normal contact (and save the child, you and the court from months of wrangling and review hearings). Don't go to war, think outside the box!

Links to guides are included in this blog. You may also find our guides on applying for contact,  shared residence, interim contact case law, and false allegations of use.

A victory for common sense and children

The Children Act 1989 is to be amended to give children the legal right to a relationship with both parents following separation. A working group including Tim Loughton, Parliamentary Under-Secretary of State for Children, Jonathan Djanogly, Justice Minister, and Sarah Teather, Minister of State for Children and Families are to come up with proposals within 2 months concerning how the law should be changed.

The Office for National Statistics estimates that 3.8million children in the UK live without a father.

We have argued for some time that depriving a child of one parent places them at risk of emotional, developmental and psychological harm. Our reports into leave to remove and shared care gave examples of the many expert studies which have supported our views. You can read some of that research here.

Our respects to Tim Loughton MP, who has consistently spoken out over many years in support of protecting children's relationships and safeguarding child welfare. Our thanks too to the coalition Government on making good their promises.

We have a Prime Minister and Deputy Prime Minister who start cabinet meetings later in the mornings to enable them to take their children to school. Society has changed, and perhaps now, our family law will reflect parenting in the new millenium.

Please read our own Proposed Amendments to the Children Act 1989

Our 38th smartphone optimised guide - Dyslexia, the Courts and Reasonable Adjustments

In the past two years I have come across a number of cases where the parents had dyslexia. In each case, due to their not raising that they had this condition early in proceedings, I believe their cases were adversely affected and they faced significant disadvantage. Damage was done.

Evidence thrust under their noses during cross-examination, hesitation taken for attempts to avoid questions, and in one case ridicule for not understanding subtle nuances of speech and double negatives. Poor memory under stress, getting dates wrong or in the wrong order all impacted on their credibility as a witness.

Most of them were successful professionals, who have well developed coping strategies for day-to-day life. Court is not day-to-day life though, especially when matters relate to your children and your ex-partner. Stress comes into play, and for these parents, the stress exacerbated their dyslexia. Assumptions are made that because these often intelligent people have degrees and hold down well paid jobs, their dyslexia isn't a problem. Thrust them into court without reasonable adjustments being made to assist them and the result is a decidedly unfair trial.

"You have a degree, you must be able to read and understand papers!" is a common assumption, although the question may not be asked whether all their paperwork is provided on tinted matt paper as gloss white paper causes text to blur and scramble.

Courts and the legal process are not dyslexia friendly, and despite there being guidance for the judiciary and legal profession, in our experience, many judges and solicitors are unaware of the guidance, and have little to no idea as to how dyslexia affects people.

So... our 38th guide, and this time on Dyslexia, the courts and reasonable adjustments.

Over the next few weeks, all of our guides will be updated and reformatted to be more accessible to parents and grandparents with dyslexia.

You have rights, and the courts have a duty!