Shared Residence Orders

When two parents separate it is often the case that one, or both, of them seeks some semblance of definition with regards to the care of their children. The family Courts are often called upon to try and provide that definition.

The Orders available to the Court within such circumstances are set out within the Children Act 1989. Amongst other things, this statute provides for the making of Residence Orders, Contact Orders, Specific Issue Orders and a Prohibited Steps Order.

The case law in relation to Shared Residence Order makes clear that their use is not to be limited to exceptional or unusual circumstances (D v D (Shared Residence Order) and that they can be a useful tool to highlight to the parents in question that they both have an important role to play and are therefore on an equal footing.

There has been clear development within the area of Shared Residence Orders over the years and it may be that there is further development to come, as a private members Bill has now been tabled by Brian Binley, Conservative MP for Northampton South.

The Bill proposed by Mr. Binley, which will likely be debated in the House of Commons next Summer, would, if successful, provide for the making of Shared Parenting Orders following separation and / or divorce and it is understood that the it would put into place a presumption that such Orders would enhance the welfare of a child unless certain exceptions apply.

It is reported that shared parenting legislation is becoming increasingly common elsewhere in the world, for example, Australia and a number of US states and the critics of our current law argue that as it stands it often has a divisive impact on families i.e. actually creating the perception of a power imbalance by labeling one parent as the primary carer. Clearly, there are / will be circumstances where such a definition is entirely right in light of the facts of the case and it is reported that shared parenting orders would provide appropriate safeguards for those cases where shared parenting is not the best solution. There cannot be a blanket approach to a situation which may be different from family to family.

Mr. Binley is quoted as saying: “Shared Parenting legislation is vitally important for all involved, especially the children. Very often court orders are made without the knowledge of the importance of a father’s involvement and my bill will make sure that neither parent is shut out from the child’s life when sadly a relationship breaks down. I don’t need to underline the importance of both parents in a child’s life.

“A significant proportion of the social problems in today’s society are a result of when a child doesn’t have the love and support of both parents where safe. I hope that this bill will go some way to help this, which will only be good for society.”

We must now wait to see what comes of the proposed shared parenting legislation but, in circumstances where the Court’s paramount concern is quite rightly the welfare of the child / children concerned, then it could well be a positive step for the Court to have more options / powers available to it when considering issues relating to the care of children following the separation of their parents – issues which by their very nature can be extremely difficult to decide to the satisfaction of all involved.

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