DISCUSSION ON SHARED RESIDENCE ORDER

An order made before 22 April 2014 under section 8 of the Children Act 1989. It names two or more people, who live in different households, with whom a child is to live for periods specified under the order.

A shared residence order is a family arrangement that is been instituted between the parents in relations to the share responsibility for their child’s upbringing after the parents’ divorce or separate. It specifies the time period that the child will spend with each parent. The order becomes necessary only if the total well being of the child will be achieved.

The key issues in W (a child) (shared residence order) 2009 case is that;

Shared residence order would not be made unless unusual circumstances prevailed.

The inability for the parents to work in harmony does not itself precipitate a shared residence order. But the effects on the children will trigger the need for shared residence order.

A person with shared residence order does not need a grant of contact order.

This case was between two biological parents who wanted shared residence and contact orders to be made. The court dismissed the appeal and made it clear that a shared residence order is different from a contact order. The court in their submission stated that the shared residence order will only become necessary if certain unusual circumstances prevailed. The court made it clear that making shared residence order does not necessary means that equal timing arrangement must be made in favour of the parents. It can also be inferred from the court submission that the court is always ready to make a shared residence order if the parents’ contentious behaviour would have great consequences on the child’s upbringing.

In the past, cases such as Re H (A Minor) (Shared Residence)1994 and A v A (Minors)1994 served as leading cases provided the reasoning and arguments in deciding cases where shared residence order was required. They respectively covered the ‘exceptional’ and the ‘unusual’ factors surrounding individual cases. However, it was deemed by legal professionals that the two cases provided no absolute clarity in determining if certain cases required residence order to be granted as they do not emphasise enough the interests of children and could render biased judgement.

A defining change followed in the case of D v D(Shared Residence Order)2002 where the judge Hale LJ re examined Butler-Sloss LJ in A V A (Minors) (Shared Residence Order) where the former stated that a shared residence order could be issued where a child had considerable amount of contact with both parents so as to preserve the child’s best interests.

A different view was shed in Re G 2006 where in determining the shared residence order, a paramount consideration should be given to the biological relationship that the parents have with the children. Baroness Hale stated that the upbringing of a child by his or her biological parent can be expected to be in the child’s best interest in the short and longer term. This case was concerned with two female couples who wanted to have a shared residence order to be made. But the court dismissed the application inter alia on the basis that the other female parent was not a biological parent of the children.

It can be argued that W (a child) (shared residence order) 2009 did follow the current law in Re G 2006. This is because in the W (a child) (shared residence order) 2009 the court gave fair order in favour to both parents. Having close look at the case of Re G 2006 the court would have given similar fair order in favour to the parent. The court did not give order in favour of the other parent in Re G 2006 because the other parent was not the biological parent of the children. But the court intention was very clear that a shared residence order would be given if it will helped with the child’s upbringing.

Re G 2006 is actually difficult to follow. This is because;

The court placed more attentions to the biological parenting rather than psychological parenting.

The biological parent of the children refused to complied with court orders yet she was given the opportunity to take the entire custody of the children.

In total the decision in Re G 2006 pose a difficult uncertainty for aftermath break-up in same sex relationship. Dr. Johnson Building’s put it that the decision in Re G 2006 has come to increase challenges ahead as family relationships within society continue to evolve.

The issues in different cases are quiet different yet the court was candid in holding on to the best interest of the child. In the case of P-J (Children) [2009] EWCA Civ 588, the court did not grant residence order in favour of the mother. This is because the court was of opinion that the children have remained habitually resident in Spain and therefore must continue to live there with their father. In the case of N (A Child) [2009] EWHC 1807 (Fam) the court asserted that the uncompromising attitudes of the parents have caused emotional harm to the child. In all these cases the court placed paramount consideration on the best interest of the child.

Bibliography

  1. Jacqueline Martin & Chris Turner, Family Law Key Facts, Helen L Conway 2008
  2. Jonathan Herring, Family Law 3rd edn, Person longman Publishing, 2007
  3. Jill Black, Jane Bridge & Tina Bond, A Practical Approach To Family Law 7th edn, Oxford University Press, 2004
  4. Routledge Cavendish, Family Law 5th edn, law cards series, 2009

Websites

  1. www.thecustodyminefield.com/12.html –
  2. www.hartnellchanot.co.uk/just…/shared-residence-order.html –
  3. www.fnf.org.uk/law-and-information/shared-residence –

Cases

  1. W (a child) (shared residence order) 2009 EWCA Civ 370
  2. Re H (A Minor) (Shared Residence) 1994
  3. A v A (Minors) 1994
  4. D v D (Shared Residence Order) 2002
  5. Re G 2006
  6. P-J (Children) [2009] EWCA Civ 588
  7. N (A Child) [2009] EWHC 1807 (Fam)

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