Over my 13 years as a family law solicitor, I have seen increasing support for joint residence for fathers.
Traditionally, mothers cared for the children: fathers were the breadwinners. On separation, the children were least disrupted if their mother continued to be the main carer. But this is changing. Fathers who have shared day to day care of their children, do not want to be weekend-only fathers on separation.
In many cases, when parents separate, they can agree between themselves with whom the children should live, and how much contact the other should have. In other cases, the court is asked to decide. Under The Children Act 1989 the court has to consider what is in the child’s best interests. It also has to consider a list of factors, including the likely effect on the child of any change in his circumstances.
Until relatively recently Shared Residence Orders were quite rare. This was for two main reasons. Firstly, it is considered that children need as much stability as possible particularly at a time when their parents are separating. Therefore any change in the status quo is approached with extreme caution. Secondly, the court is wary of children being entangled in parental conflict. Research carried out by Carol Smart (“Children’s Voices” Paper available at http://familycourt.gov.au/papers/html) concluded that shared care was more likely to be organised to suit parents than to suit children. The majority of children in shared residence knew how important the equal apportionment of their time was for their parents. Children often carried the burden of shared care and felt responsibility for ensuring “fairness” between their parents. It worked if there was a degree of flexibility and cooperation between the parents.
In 2004 a government Green Paper “Parental Separation: Children’s Needs and Parents’ Responsibilities” pointed out that three million of the twelve million children in this country have experienced the separation of their parents. It concluded that there should not be an automatic 50:50 division of the child’s time between the two parents. This is in contrast to many states in the US and in Australia where an equal sharing of the child’s care is now a presumption.
However, there has been a shift in the court’s attitudes towards joint residence orders. Developing case law shows that where children divide their time between their parents’ homes, equally or otherwise, then increasingly the courts have favoured the use of Shared Residence Orders to reflect the reality of the children’s lives. Distance between the parental homes will not it itself prevent the making of such an order. A good relationship between parents is no longer a pre-requisite for Shared Residence Orders. Indeed such Orders can be used even when a 50:50 division of time is not intended, to emphasise the importance of both parents in the children’s lives; that neither parent is in control and to prevent the other parent from becoming marginalized in the children’s lives.
As society continues to evolve, and parents move increasingly towards shared work and child care responsibilities, more and more Shared Residence Orders are being made to facilitate a more equal distribution of time between parents after separation.
If you have any queries about any of the issues raised in this article, or about Family Law generally, please contact Beth Woodward in Neves’ Family Law Department (bwoodward@neves-solicitors.co.uk or on 01908 304560).
