Wednesday, May 14, 2008

Re K (Shared Residence Order)

Shared residence is an issue that is becoming more and more important, and which can cause considerable confusion. I have therefore been waiting for a report of Re K (Shared Residence Order), the judgment of which was given on the 4th April. I have now seen a short report (citation: [2008] All ER (D) 55 (Apr)), and I think it is of interest, particularly regarding the relationship between shared residence and contact.

Briefly, the facts were that the child spent approximately 60% of his time with the mother and 40% with the father. The father applied for this to be increased to 50%, and sought a shared residence order. The district judge found that the slight benefit to the child of the increase in contact with his father was outweighed by the disruption to a regime that seemed to be working well, and therefore refused to increase the contact. He then went on to separately consider the issue of shared residence, and refused to make the order, after referring to the additional contact being 'required' to lead to a shared residence order. The father appealed unsuccessfully to a circuit judge, and then appealed to the Court of Appeal.

The Court of Appeal found that the district judge should have heard both issues together, ruling first on the appropriate division of time, and then whether that division should be expressed in terms of a shared residence order or a contact order. The district judge's decision not to increase the contact was within his discretion, and therefore the contact would not be increased. However, he had erred in treating that issue and the question of a shared residence order as standing or falling together. A shared residence order was appropriate, and would therefore be made. The mother had argued that the father would use a shared residence order to interfere with her role in relation to the child, but no such 'malign intent' on the part of the father had been established.

Update: A full report of this case can now be found, here.

11 comments:

  1. This judgement clearly demonstrates that Shared Residence does not need to be tied to equal division of parenting time.
    In this case both parents are fulfilling their individual parental responsibilities and should therefore be afforded the rights and respect to be viewed as equal parents.
    The making of a Shared Residence Order has removed the parental rights or power imbalance and established equity of parenting roles. This is right and proper treatment of responsible parents.

    If only all Private Law cases started with such a rebuttable presumption of equality, I am certain we'd see a decline in the trend to obtain ultimate parenting power and control.

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  2. No, it is clearly established that shared residence does not need to be tied to equal division of parenting time.

    I believe you are correct that cases should start from a position of equality, and I have said this here myself previously.

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  4. "No, it is clearly established that shared residence does not need to be tied to equal division of parenting time."

    That's what I said John ;-)

    I would presume that the father in this case made reference to caselaw such as Re: C (2006), which makes it clear that Shared Residence Orders would recognise the practical reality of the child's life.

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  5. I know what you said - I'm agreeing with you! ;-)

    I don't know whether Re C was referred to - I've not seen a full report.

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  6. Last year I had my first child free night in 23 years and a presumption of equality sounds quite appealing, however, I'm going to risk virtual life and limb and disagree with you both. I don't think parenting is about parental rights, equality or fairness - it's about doing what is best for children.

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  7. First child free night in 23 years! Bloody hell - hope you enjoyed it!

    How dare you disagree with me! Right, I'm removing you from my blogroll...

    Seriously, you are of course quite correct that it is about doing what is best for children, rather than parents. I'm not for one moment suggesting that we should do away with the paramountcy principle, but surely the welfare of the child will usually be best served by a full and equal contribution from both parents, whenever that is possible? Think of it as the child's right to spend equal time with both parents, rather than the parent's right to spend equal time with the child.

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  8. Actually I'm doomed. The first 'child' free nights were visiting my 89 year old Aunt who wanted someone to chum her along for cataract surgery. Then I went on holiday and our son went AWOL in Kashmir so I spent an anxious week on the phone and internet. Grr...

    I'll agree to disagree. I just think focusing on the equality of contributions puts the emphasis on the time being owned by parents rather than the children or young people themselves.

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  9. John,

    I'd be grateful if you could put any further details of this case onto the blog if and when you get them.

    Thanks

    STH

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  10. I'll put a link here if a report is published online.

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  11. I have recently been through the court system fighting against my 'wife' gaining full residency of my young 18 month old son. I argued that Shared Residency would be a much better arrangement for him. My 'wife'
    clearly wanted to have power over me and my time with my son. I don't believe that was in his interest and I don't believe that she has a god given right to be the main carer of my son. My wife used ever nasty trick in the book, none of which could be substantiated and thankfully due to my not throwing anything away attitude, I was able to show that everything she was saying was untrue. I was granted shared Residency, which was what I was asking for. I raise issue that the court was biased towards my 'wife' and I had to fight so hard just to gain an equal footing within this system. I think the court service should hold the principle that at the outset of the hearing both Mother and father are equal under the law and in the judges mind, Unless there is a strong reason not too. Father's in this country are often made to feel unworthy and of no relevance to our children, This is so unfair and completely wrong, having a strong, loving and present father around on equal footing with the mother is not only the right thing but an important social need.

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