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:

Let's abolish the Family Justice Council

I wanted to share with you excerpts from the Children in Families Committee (part of the Family Justice Council) written contribution to the Family Justice Review. It is a little old news, but I had missed it, and upon reading it, am somewhat scandalized at the content. I imagine most of you missed it too, as such  things tend to be buried on Government websites. Be prepared for a range of emotions, from surprise, to humour, to shock and perhaps anger. Perhaps their biggest insult was to the judiciary themselves. Read on...

Would you expect 'The Committee' (seemingly of professionals) to be seeking to subvert the principles of judicial discretion, when their basis for doing so is subjective opinion? Consider this...

The Committee feels that some healthy skepticism about the appropriateness of shared residence orders is required to counteract an apparent growing judicial willingness to make such orders in circumstances where they may not be appropriate.1

Have we got this right. The 'Committee' do not trust our judiciary? Surely there must be robust grounds for this? In the same paper, they admit there is no research as to the extent or outcome of shared residence orders being made by the courts. Shouldn't research come before the Family Justice Council (FJC) seeks to subvert judicial discretion?

What was the child welfare research to support such a finding?

The child mental health specialist member of the Children in Families Committee expressed a very firm view, based on her clinical experience, that shared residence orders are rarely in the best interests of children but are much more about meeting the needs and interests of their parents.

Her clinical experience. A single person's experience on the impact on child mental health. The fact that 'her experience' is contradicted by a wide body of educational, psychological and sociological research would have escaped the Committee, as it appears such decisions are made over a cup of tea and a rich tea biscuit rather than the analysis of impartial empirical research. Is this what our laws are based on?

You would hope that the author of the report would question this point him or herself. You would hope that, when advising the Family Justice Review, they would have a regard to accuracy, impartiality, and objectivity. Not at all. The authors dig a hole, and keep going. Consider the ignorance in what they go on to say about shared residence and its application in relocation cases (their words in italics, my criticisms come after):

Current case law means that in practice a parent who has a sole residence order will get leave to relocate to another jurisdiction with the children. Really? Doesn't the outcome turn on the individual facts of the case and arguments presented? What about motive? What about whether plans are reasonable? This seems, at best, a prejudicial opinion not in any way linked to the needs of the child in each individual case and at worst, justifies the view that many have that the courts rubber stamp relocation applications with scant regard to the impact on the individual child. Such prejudicial attitudes resulted in Moore-Bick LJ (the Deputy Head of Civil Justice) being parachuted into the family courts to clear up the mess left by 10 years' rigid adherence to Payne v Payne and Thorpe's beloved 'distress argument' (a review, I might add, that the then President of the Family Courts had declared would not happen in the Court of Appeal... oops!).2 Moving on, the author kept wielding their shovel. In a case where there is an international dimension, obtaining a shared residence order means that the parent who opposes a relocation application will have at least some prospect of succeeding in preventing leave to remove being granted. Are they suggesting that a parent should gain shared residence as a strategy to defeat a future leave to remove application? Ah, the chicken and egg stratagem! Nonsense. Any legal adviser with half an ounce of sense or experience knows that the legal status of 'shared residence' is unimportant, compared to the quantum of care (and the facts of the case!). Perhaps someone should comment to the author of the report that shared residence is not an automatic bar to relocation being granted (but let's not cite more authorities [common law] and rub it in)?3  The lawyer members of the Committee therefore believe shared residence orders may have a place in such cases at least where such an order reflects the involvement of the parents in their children’s life. Ahha... let us look at an actual fact...

The quantum of care time between mothers and father in intact families in society is near identical... differing, on average by only 15 minutes a day. My opinion? Not at all, as some of use do look at research before writing.4 Could there be a correlation between this statistic, and Mostyn J's assertion that shared residence orders were becoming the norm (again, sadly, a view which lacks the statistics to support it).

Again, had the Committee a basic knowledge of case law, they would know it was established in 2002 in Re A (Children) (Shared Residence) [2002] EWCA Civ 1343 that shared residence orders should be made if they reflect the reality on the ground. There are a long line of authorities since.

So if the lawyer committee members are right, that shared residence orders have a place in cases where the order reflects the involvement of the parents in their children's lives, the Family Justice Council should keep their ill informed noses out of the matter, and ideally be put out to pasture.

Still think I'm being harsh? Oh there are more priceless inconsistencies spewed out by this shovel wielding incompetent who seems to have an axe to grind against Sir Nicholas Mostyn (one of our more capable high court judges). Mostyn was Paul McCartney's brief. He was editor of Jordan's International Law. He's undoubtedly intelligent and widely respected by his peers, but his judgment, given in the cited case cast criticism on the thinking of the Court of Appeal, and indirectly, the recently retired Head of International Family Law.5 For a High Court judge to criticise guidance given in the Court of Appeal was rare, and likely unwelcome [could I understate this more?]. As many believe, the thinking of Mostyn was right, and as one of the most respected lawyers in the country before becoming a High Court judge, delivered beautifully (and we suspect, with some personal satisfaction, having had that same Head of International Family Law throw out his appeal only two years earlier).6

As justification for opposing shared residence, the Committee attempts to savage one of the reasons Mostyn views shared residence with favour (and a powerful one, based on a child's human right to family life). In judgment, he had declared:

"If one were to draw up a hierarchy of human rights protected by the ECHR [European Court of Human Rights], near the top would be the right of a child, while or he she is growing up, to have a meaningful participation by both of his parents in his upbringing;...”.

Note the words 'meaningful participation' rather than mere 'involvement' which became the diluted sop in the Children and Families Bill in response to years of outrage by the public at bias in the courts. How did the Family Justice Council seek to confront such a cogent argument? Read on... their inconsistency isn't hard to spot.

Whilst few would disagree with Mostyn J’s statement that a child has a ‘right’, while he or she is growing up, to have a meaningful participation by both of his parents in his upbringing, [but you know they want to] this is not a ‘right’ which children have ever been able to enforce against unwilling parents [shouldn't that be a role for the courts then, and our laws]. Rather, it reflects a moral and potentially legal obligation on the parent with care to facilitate a relationship where the non residential parent wants this [shouldn't our laws support moral and legal obligations]. Consequently, the Children in Families Committee of the Family Justice Council (“CIFC”) questions the implicit assumption that in order to achieve such meaningful participation in a child’s life, his or her parents must have the benefit of a shared residence order made by the court [such orders are sought when parents fail to uphold this human right for their child].

Bravo to the Committee's author on a fine example of cognitive dissonance in practice!

So consider... and let me repeat the where the Family Justice Council got it right... 'few would disagree that a child has a right to a meaningful participation by both of his parents in his upbringing.'

What might strengthen and uphold that right in family law... that a child has the right to shared parenting. Why then, did our Family Justice Council argue so vociferously against it? Why now do we see shared parenting or shared care removed from the Children and Families Bill? Why has the word 'meaningful' been removed and diluted to 'involvement' (which could be anything). Shouldn't our laws reflect societal norms? Shouldn't they be based, one would hope, on child welfare research? It's a little moth eaten now, but we published details of  a wide number of findings some years ago. There's lots more on our website.

http://www.thecustodyminefield.com/SharedCareResearch.html

What of the Committee's conclusion and recommendation in relation to shared residence orders... and this will shock you. They said they wanted to all but abolish shared residence.

The Committee would prefer to see them made only in exceptional circumstances, those where there is potential for relocation or where one parent is resolutely denying the existence of the other’s PR [parental responsibility] and a shared residence order is used to make it clear that either parent could, in the view of the court, provide a home for the child (the implicit threat being that if the recalcitrant parent does not mend his or her ways, a full residence order may be made in favour of the other parent). 

Far from wanting to see a child's right to the meaningful participation of both parents upheld in law, it seems the Family Justice Council wants to all but abolish it, ignoring the authorities which cite the appropriateness of shared parenting (developed over 20 years, and since Butler-Sloss was forced to overturn her own guidance to the courts which limited shared residence orders to exceptional circumstances).7 I suspected the FJC didn't want change. I didn't realise they sought to overturn 20 years of judicial progress!

Another reason why Parliament needs to introduce a presumption of shared parenting in law, because those who influence our judiciary are ignorant of research, ignorant of modern parenting in this century, and seek to impede the development of law even at the expense of judicial discretion.

When we see how the Children and Families Bill has been diluted, it is little wonder when such powerful groups have lobbied the Government (in the guise of 'experts').

Rather than abolishing shared residence, isn't it time we abolished the Family Justice Council, if they lack the dignity to resign.

Notes
 1. Annex 2. The Use of Shared Residence Orders. A Discussion Paper Prepared by the Children In Families Committee of the Family Justice Council as Part of the Family Justice Review (undated).
2. K (Children) [2011] EWCA Civ 793.
3. If you want us to rub it in, it was Re T (A Child) [2009] EWCA Civ 20.
4. Equal Opportunities Commission [2008].
5. AR (A Child: Relocation) [2010] EWHC 1346 (Fam).
6. G (Children) [2007] EWCA Civ 1497.
7. Re A (Children) (Shared Residence) [2002] EWCA Civ 1343

The Children and Families Bill, Parental Involvement and Timescales

Remember the hoo-hah about a change to the law, and there being a presumption of shared parenting in law? Remember the C4 Dispatches programme and the broo-hah following that?  A poll by the TV programme found that 84% of respondents believed that the family justice system favours mothers over fathers, and 88% believed that the law needs updating.

Such matters were due to be addressed in the Children and Families Bill.

Where stands the Bill now, and what does it actually say?

Where stands the Bill now?
Slow progress has been made (at least in terms of timescale, if not of content, where the word 'little' seems more apt than 'slow'), with the next stage being the Committee Stage in the House of Lords. This meeting is set for 9th October 2013. For those with a Tolkeinesque vocabulary, the progress of legislative reform is positively entish.

What next? Then comes the reporting and third reading stages, and we enter the world of ping/pong (this is actually an official term, since the Bill and amendments are subsequently batted backwards and forwards between our two Houses of Parliament).

If it passes this stage, then we see Royal Assent granted BUT, that does not mean that the new legislation immediately comes into force. Consider that the parts of the Children and Adoption Act 2006 concerning contact enforcement didn't come into force until December 2008.

So it's safe to say my, and others' guides, don't need updating yet.


What does the Bill actually say?
You may remember that campaigners' wishes varied. Some called for:

• a presumption of shared parenting; others
• a minimum amount of contact; others
• a presumption of equal parenting time; others
• wished no change; while others
• thought all men were dangerous, and should have to prove they were safe before any contact was granted.

Most campaigners agreed that safeguards needed to be in place to ensure face to face parenting was restricted where there were proven risks to the child. Some believed that the presumption of shared parenting should only be removed where the similar circumstances applied as would require a child being taken into local authority care... where the child was at risk of significant harm, if placed in a shared care arrangement.

My view was a rebuttal presumption should exist concerning shared parenting, and that research showed that shared parenting was routinely in a child's best interests. The 'rebuttal' part allowing a challenge to this, in individual cases, where there was evidence of risk to the child from such an arrangement. Further, I believed both parents should have the opportunity for midweek as well as weekend parenting time, to facilitate involvement in schooling and extra-curricular activities (proven to have positive benefits for child development). If you like, I wanted a definition of 'involvement'.

So back to the sub-heading. What does the bill actually say? Which lobbying group was successful? I'd argue, those who don't want any change at all (with a perceptual exception).

The changes in the Bill which currently relate to presumptions are set out below. Gone is the word 'meaningful' that others argued for. There is no definition of what 'involvement' actually means. I once wrote that without, at the very least, the word meaningful, the word involvement was meaningless.

11 Welfare of the child: parental involvement

(1) Section 1 of the Children Act 1989 (welfare of the child) is amended as follows.

(2) 15After subsection (2) insert—

“(2A) A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the
contrary is shown, that involvement of that parent in the life of the child
concerned will further the child’s welfare.”

(3) 20After subsection (5) insert—

“(6) In subsection (2A) “parent” means parent of the child concerned; and,
for the purposes of that subsection, a parent of the child concerned—

(a) is within this paragraph if that parent can be involved in the
child’s life in a way that does not put the child at risk of
suffering harm; and

(b) is to be treated as being within paragraph (a) unless there is
some evidence before the court in the particular proceedings to
suggest that involvement of that parent in the child’s life would
put the child at risk of suffering harm whatever the form of the
involvement.

(7) The circumstances referred to are that the court is considering whether
to make an order under section 4(1)(c) or (2A) or 4ZA(1)(c) or (5)
(parental responsibility of parent other than mother).”

So the current proposal, as it stands, is that there will be a presumption that parents have an involvement in their children's lives (with the usual safeguards), but without any definition, or emphasis with the word meaningful? At the lower end of the scale, one would imagine involvement would be having been present at the point of conception (whether in person, or via test tube). At the upper end of the scale, what most people understand to be 'shared care', meaning both parents are fully involved in schooling, leisure time, overnights, and all aspects of the children's routine, day in, day out, school week and weekend care as well as having holiday time with the children. This does get granted in some courts, but there continues to be inconsistency from judge to judge and region to region in very similar cases. Well worded legislation cuts down on such inconsistency.

A red herring in this debate was that the presumption would grant parents the right to inclusion in important decisions which affect the children. As any 1st year student in law should know, the existing legal status of parental responsibility already grants that right and responsibility (albeit ensuring that right is upheld is an entirely different matter).

So does a presumption of involvement actually change anything? No. Everything rests on the decision of the individual judge and their selective and personal definition of what involvement means, whether a card four times a year, alternate weekend staying contact, or a mathematical division of the child's time. All could be considered 'involvement' due to such loose legislative wording.

Another part of the bill relates to a change in legal terminology for post separation child arrangements. We see the unpleasant and controversial term 'contact' (and residence) order replaced with 'child arrangement' order.

Aside from the heading on the top of a court order, does this actually change anything? Not really, and questions remain unanswered. A few examples for you:

1. Currently, a parent with contact can make an application for contact enforcement, and the assisting or punative measures set out in the Children and Adoption Act 2006. These measures only apply to contact, and a parent with shared residence cannot apply for 'contact' to be enforced (as they share residence rather than having a right to contact. A fatuous state of affairs, which the new bill doesn't appear to address (unless I've missed it?). With the contact orders disappearing, it would seem that the Children and Adoption Act 2006 will become defunct (sections 11A to 11P of the Children Act 1989 as amended by the Children and Adoption Act 2006), as there is no amendment of wording related to enforcement of orders (whether contact, residence or child arrangement);
2. Under existing legislation, a parent with residence can take the children abroad without the non-resident (contact) parent's consent for up to a month (while the non-resident parent may not). Will either, or neither parent have this right under a child arrangement order (section 13(1)b of the Children Act 1989)? Who knows, as the Bill misses this point.

What concerns me, is that unless I'm missing something, the Children and Families Bill appears to be a sloppy piece of legislation.

The scope of sections 11A to 11P of the Children Act 1989 should ALWAYS have covered shared residence. A parent with shared residence should not be limited to seeking the committal of the parent in breach, which the court is rarely if ever likely to do.

I'm less concerned about whether a change in legal definition impacts on international instruments such as the 1980 Hague Convention on the Civil Aspects of International Child Abduction and Brussels II Revised Regulations, as these make reference to custody and access (replaced by the terms residence and contact). It might however be wise to ensure that the new bill clearly states that the terms custody and access, and residence and contact are encompassed by child arrangement orders, granting equal legal status to both parents (for the avoidance of doubt!). 

The parts of the Bill related to the change in legal status appear limited to:

12 Child arrangements orders

(1) 35Section 8(1) of the Children Act 1989 is amended as follows.

(2) Omit the definitions of “contact order” and “residence order”.

(3) After “In this Act—” insert—

““child arrangements order” means an order regulating
arrangements relating to any of the following—
(a)

40with whom a child is to live, spend time or otherwise
have contact, and
(b)

when a child is to live, spend time or otherwise have
contact with any person;”.

While a single legal status for both parents appears welcome, I imagine we will see the term 'primary carer' used in place of resident parent, as a stick to beat the other parent with. Will parents fight over which is the resident or contact parent? No (yay). Will they soon be back to court when the 'primary carer' (call them what you will... majority carer, parent with care and all those other terms already substituted for resident parent) wishes to limit time with the children as a means of torture, or due to a belief that they are the 'expert' parent, or a whole host of other reasons? We suspect yes (oh!). If the granting of parental responsibility to both parents ensured that both were involved in selection of schools, we'd be less pessimistic.

The Children Act replaced the concepts of custody and access with the terms residence and contact. This didn't reduce separation conflict. The battleground in court will continue to see the parents armed with exaggerated or entirely false allegations. Those who believe that the Bill's weak presumption (or mediation) are a cure to the belief in bias in the courts, or parental warfare are naive. A carrot, without the stick is of little use and especially when dealing with the human nastiness which exists when a couple's relationship implodes.

Unless there are some sanctions for perjury, and you make it so court outcomes are more certain before parties enter, the warfare will continue. There were grounds for more equal arrangements, since the quantum of parenting time between the sexes has balanced since the inception of the Children Act, and a presumption of shared parenting reflects the normal arrangements for intact families. More so, child welfare research confirms shared parenting to be in children's best interests.

What a waste of an opportunity.

Press Release - A lifeline for families as legal aid cuts bite

Press Release

'A lifeline for families as legal aid cuts bite'

05 October 2012

Legal aid cuts are expected in April 2013, and the Government estimates that legal representation is to be lost in 50,000 cases (of which 45,000 are in the private family law arena). Many families are struggling to find a legal aid solicitor now as professionals exit the industry and firms close.

Since learning this, we developed a range of resources for parents and grandparents who simply cannot afford to privately employ a solicitor. Today we officially launch the first part of our lifeline:

The Family Law Web Based Application: A bit of a mouthful, so we shortened the name to flApp. We wanted a resource which puts a vast quantity of family law information at a parent's or grandparent's fingertips. Over half a million words of content, 8 case law categories, 250 questions answered, case law to view online or download in hard copy, court process guides, key international and national legislation… 60 categories of information. Accessible on PCs, smart phones, tablets and macs. We include minimal graphics to cut internet usage costs, and pages are designed to be viewed on any platform, but especially mobile phones… even better, flApp is free.

Litigation Packs: Process guides helping the litigant through each stage of court proceedings. We have information to help them write a statement, put together a court bundle, attend a first dispute and resolution hearing or mediation  and much more. We talk them through, step by step, and include the forms and documents they need. We charge a minimal fee of £2.50 which goes towards site running costs.

Case Law on Kindle: For the unrepresented parent and lay advisers (McKenzie Friends) we have launched four case law packs which are available on Amazon in a kindle format. These cover shared residence, parental alienation, internal relocation and leave to remove.

“Internal Relocation”: The first of our new guides on specific and more complex areas of private family law... Internal Relocation. Written for parents whose children live in England and Wales, this book explains private family law  related to relocation. Such situations typically arise after parental separation and when the primary  carer seeks to move the child(ren) away from the area of the family home to another part of England or Wales. Their motives may be genuine (such as seeking new employment or moving closer to other family members) or malicious (to place distance between the children and their non-relocating parent).

The guide comes in a kindle format and in three parts. The first gives an analysis of relocation law, the second is a court process guide specific to internal relocation cases, while the third includes the full text of case law related to internal relocation.

Support Forum: Our new support forum is especially tailored for mobile phones and staffed by an experienced team from the third sector who have collectively answered more than 10,000 posts.

Case Law for iPad: Design complete, and cloud based versions are now available. We will be converting them to an app version soon.

All available at www.thecustodyminefield.com

The Custody Minefield is a leading provider of family law information for parents, charities, grandparents, step parents and the wider family. Many who use our site do so from libraries and internet cafes. Our guides are currently viewed some 40,000 times a month.

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Enquiries: enquiries@thecustodyminefield.com

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Our Video Tour

We've new content on The Custody Minefield site... 3 case law collections... FREE!

Now you can read judgments and other reference material on your kindle, ipad, iphone or tablet reader, using free kindle software and with content reformatted by us. You'll need to download Amazon's free Kindle software from here to be able to open and read our Kindle format reference guides. More case law is available on our CASE LAW page.

You can also download Case Law as a pdf to print and include in your court bundles and skeleton arguments.

New digital book on shared residence

The Custody Minefield's e-Guide to Shared Residence

A 91 page digital book on shared residence and shared parenting, including definitions, case law, court forms, MSword templates, shared parenting research findings, checklists, legal arguments, a guide on making an application for shared residence and checklists for case management.

What do you get? A digital book in a self contained .exe format. Once payment is made, simply accept the download and open the file (a download box will open once you have made your payment). Once downloaded, run the file (a little over 2 megabytes in size).

Once the book is open, click the cover to turn the page, and there are simple instructions to take you from there. Easy to use, a wealth of information and content. Do not forget to save it!

Priced £15 - Buy it now