the Family Justice Review and the issue of 'shared residence'

The Report sets out proposals to assist in providing parents, and indeed other family members, with information that they will need to help agree the arrangements for children that need to be made on separation, making it very clear that mediation and other forms of out of court dispute resolution should be explored and utilised wherever possible, with applications to court only being allowed effectively as a last resort.

 

What is also made vey clear in the Report is that when applications are made to the court, they should be dealt with swiftly and with a much more hands-on approach by the judge (who should be the same judge throughout) in managing the process to a constructive conclusion.

 

The Family team at Blake Lapthorn is only too well aware of the frustration and anguish caused to parents caught up in the court process under the current regime and welcomes any proposals that will take steps to address these serious issues. It also applauds the suggestion that applications to court should only be made as a last resort. The team has been trained in the use of Collaborative Law and mediation, and has been able to see the positive benefits for its clients in using these alternatives to court proceedings. Both should go some way to ensuring that the principle set out in the Children Act that the welfare of the child is paramount and is given full effect.

 

One of the surprises of the Report however relates to the question of whether or not 'Shared Residence' orders should be made more or less as of right. The conclusion in the final report, despite indications to the contrary in the interim report, is that they should not, as the finding was that: "The law cannot state a presumption of any kind without incurring unacceptable risks of damage to children".  This will clearly be a blow to organisations such as Fathers 4 Justice, who have been campaigning for such a presumption.

 

Currently, where parents who have parental responsibility for their children separately, that parental responsibility continues regardless of where or with which parent the child lives. This means that both parents must still play a significant role in their children's lives and both need to be involved in decisions such as those relating to education, health and religion.  In many cases now, there is no need for court orders to be made regulating the terms of the relationships further and indeed when orders are made, there is often inflexibility and rigidity placed into an already strained regime.  However, ongoing parental responsibility does not equate to 'shared residence' and, at the moment, it is still usually the case that children will have one central home base and will spend time with the other parent. That can sometimes cause tension and complaints of the non-resident parent being sidelined, which is argued is not in the children's best interests. There has been an increasing number of occasions on which the court has been prepared to impose a shared residence order in recent years (and also an increasing number of instances where parents agree to such a regime, often where there has been genuine shared care arrangements prior to separation) and clearly the hope of some campaigners was that that would provide the basis for a legal presumption being set out in favour of shared residence.

 

Blake Lapthorn's experience is that 'shared residence' tends to work best where that is what has been agreed between parents and there is trust and a good working relationship between them.  It seems that that may be the conclusion the Review has also reached and clearly the hope is that parents should be encouraged to work together to decide what is best for their children. There is nothing set out in the Review's recommendations that will stop parents reaching agreements for there to be a sharing of the children's residence (and indeed that may well be something that can be properly and fully explored and considered in mediation for example) nor to stop the courts making such orders where the court deems that that is what is best for the children - which ultimately is what both parents and the courts are looking to achieve.

 

It will be interesting to see how much of the Review's Report is implemented.

For further information or to talk to someone about a specific matter, please call a Family law team member in the office nearest you:

Christine Plews in our Oxford office on 01865 254213 or christine.plews@bllaw.co.uk.

Simon Burge in our Southampton office on 023 8085 7088 or simon.burge@bllaw.co.uk.

Fiona Wilson in our London office on 020 7814 6909 or fiona.wilson@bllaw.co.uk.

Alternatively, please email our general helpdesk on familylawinfo@bllaw.co.uk.