We’ve heard a lot about shared residence orders in the media over the last few months but what exactly are they? Is it just another label that ultimately changes nothing?
A residence order is a court order which sets out where a child should live usually following the separation of the child’s parents. Historically it has been in favour of one parent with the other parent having the benefit of a contact order which sets out arrangements for visiting/staying with the other parent. A shared residence order sets out the child shall reside with both parents but at different times. However, it is very important to note that shared residency does not mean that the time the child spends in each home must be equal neither does the distance between the parties provide a barrier for making a shared residence order.
Fortunately, most parents are able to agree the arrangements for children without too much difficulty. The courts will not intervene unless it is in the best interests of the child. Most parents are able to talk to each other and find a solution together. The key is to ensure that you put the children first, to compromise and maintain some stability for the children.
Unfortunately there are a number of parents who sadly are unable to agree arrangements for the children and seek the court’s assistance.
The historic view of our Judges has been that children needed the stability of one home and that the concept of a shared residence order would only be considered in exceptional circumstances and only where there would be a positive benefit to the child.
In more recent years, there has been a definite shift towards the shared parenting concept and we have seen an increase use of shared residence orders. It is no longer necessary to show exceptional circumstances.
A shared residence order is often regarded as equalising the power between the parents. It emphasizes that both parents have similar rights and responsibilities, but it has practical implications too. A shared residence order can carry more weight than a contact order if the other parent wishes to leave the area or even the country.
The value of a shared residence order has been described as emphasising the fact that both parents are equal in the eyes of the law and that they have equal duties and responsibilities as parents. The order can have the additional advantage of conveying the court’s message that neither parent is in control and that the court expects parents to cooperate with each other for the benefit of their child.
The advantage of shared residence orders are that they are perceived to:
- promote a continuation of family life;
- reaffirm the responsibility on both parents to provide care;
- reaffirm the responsibility on each parent to provide financially for their child;
- reduce the burden and stress of single parenting;
- assist the child in maintaining meaningful relationships with both parents;
- confirm to the child that each parent wishes to, and is able to provide them with a home.
Shared Residence can help alleviate the grounds for parental hostility and reduce the potential for future conflict and a return to court.
When making any decision regarding any or all of the above orders the court’s paramount consideration is the welfare of the child. Those matters which the Court are obliged to take into account when deciding on issues involving children are set out in the Children Act 1989 and are known collectively as the “Welfare Checklist”. They are as follows:-
- The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding.)
- His physical, emotional and educational needs.
- The likely effect on him of any change in his circumstances.
- His age, sex, background and any characteristics of his which the court considers relevant.
- Any harm which he has suffered or is at risk of suffering.
- How capable each of his parents and any other person in relation to whom the court considers the question to be relevant is of meeting his needs.
- The range of powers available to the court under this Act in the proceedings in question.
- Courts will also have regard to the general principle that any delay in determining issues relating to the upbringing of a child is likely to prejudice the welfare of that child.
Our family lawyers can help you decide whether a shared residence order is the right thing for you and your children.