An Observation of the Reform of Residence Orders

There as been cautious welcome to the Children and Families Bill that was announced in May 2012. The Bill has significant proposals, including a 6 month statutory time limit for care cases; greater emphasis on mediation and the establishment of a ‘shared parenting’ principle to ensure children have a relationship with both parents after family separation.
The main concern aired seemed to be how such measures are to be resourced and implemented in a family justice system that is facing such profound budget cuts. More pressingly, however, is whether the Bill is a missed opportunity for important reform and this article argues that what is needed is a rethink as to the labels we attach to orders governing where a child is to live.

‘CHILD ARRANGEMENTS ORDERS’

The label given to Children Act 1989 orders governing residence and contact has been the source of frequent and heated discussion. In its Final Report, published in November 2011, the Family Justice Review recognising problems in the current system, recommended the introduction of so-called ‘Child Arrangements Orders,’ to replace the current regime of ‘contact’ and ‘residence’ orders. At para 112, the Final Report noted that ‘Child Arrangements Orders’:

‘… would set out arrangements for the upbringing of a child when court determination of disputes related to the care of children is required. The new order would move away from loaded terms such as residence and contact which have themselves become a source of contention between parents, to bring greater focus on practical issues of the day to day care of the child. Government should repeal the provision for residence and contact orders in the Children Act 1989.’

The recommendation is premised on the notion that altering the name given to determinations of where a child lives and how much contact he or she has with each parent, will concentrate minds on the practical issues of a child’s care.

It much be queried whether such orders, rather than importing a renewed focus on the practical aspects of a child’s upbringing in fact represent, at best, a fruitless re-labelling of the current contact and residence orders and, at worst, a retrograde step.

LESSONS FROM SHARED RESIDENCE ORDERS

A brief overview of the case-law surrounding the vexed and oft-debated issue of shared parenting, provides fertile ground for further discussion as to reform of Private Law Children Act orders. There can be observed a recent and troubling trend as regards the making of shared residence orders which elucidates the urgency for reform of the 1989 Act. What can be seen from the cited cases is a move towards the making of such orders in order to achieve a more ‘co-operative’ relationship between the parents. This is cause for alarm as it suggests a worrying deviation from the paramountcy principal. In A v A (Shared Residence) [2004] EWHC 142 (Fam), [2004] 1 FLR 1195, it was determined that the children spend equal time with both parents under a shared residence order. In this case, the court used the shared residence order device to contain an intractable conflict between the parents; a dispute which had been described in the guardian’s report as a ‘virtual state of war’. In Re P (Shared Residence Order) [2005] EWCA Civ 1639, [2006] 2 FLR 347 the court went further. Wall LJ (as he then was) noted at para [22] that:

‘the [shared residence 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 co-operate with each other for the benefit of their children.’

Finally, in Re A (Joint Residence: Parental Responsibility) [2008] EWCA Civ 867, [2008] 2 FLR 1593, at para [66], the then President of the Family Division, Sir Mark Potter, noted that a shared residence order:

‘… may be psychologically beneficial to the parents in emphasising the equality of their position and responsibilities.’

It appears that the making of such an order can now be justified on the basis of the symbolic messages and psychological benefits it conveys to the parents.

Such decisions are disquieting for a number of reasons. First, I believe they place undue emphasis on the interests of the parents and therefore are difficult to marry with the paramountcy of the welfare principle enshrined in s 1 of the 1989 Act. Secondly, research into shared parenting as explored in detail in the Family Justice Review and by Annika Newnham in her excellent article, ‘Shared residence: lessons from Sweden’ ([2011] CFLQ 251), highlights the fact that shared residence does not improve parental co-operation and can, in some cases, actively harm the child.

What can be seen from a perusal of recent shared residence order cases is that the courts are using such orders to force parental co-operation and remove notions of power and control from residence arrangements. Whilst laudable, this is both contrary to the statute and likely to prove unsuccessful in bringing about the judiciary’s aim of ‘harmonious’ parenting. The implications of the case-law on shared parenting cannot be ignored. They make for disconcerting reading and underline the case for reform. It becomes apparent that the label or ‘badge’ given to a court order, whether it be ‘residence’ or ‘shared residence’ is now being used to import deeper policy considerations. Surely, this is inconsistent with the central tenet of the 1989 Act?

CONCLUSION: WHAT’S IN A NAME?

Parents continue to regard residence orders as conferring control and the judiciary has shown itself willing to employ shared residence orders to encourage ‘better’ parenting. It is clear that the current system as evidenced through the shared residence case-law, is failing and a solution needs to be found. But what shape might such reform take? With great respect, I challenge the recommendation of ‘Child Arrangements Orders’ by the Family Justice Review and the proposal of ‘parenting time orders’ volunteered by District Judge Andrew Grand. In my view, what is needed is a court order whose ‘badge’ carries with it no linked symbolic status and offers the holder no stick with which to beat the other parent.

I wonder whether it is time for an overhaul in this area and a return to the core principles on which the 1989 Act was founded. I propose the abolition of labels such as ‘shared residence’ and ‘contact’ in favour of a single, simply-named, ‘Child Welfare Order’ under which the court is entitled to regulate only the broadest themes of a child’s upbringing; leaving all of the intricacies of a child’s daily life to mediation and negotiation between the parents; in the vast majority of cases, this being the most appropriate forum for resolution of such matters. The effect of the awarded ‘Child Welfare Order’ will not be to cloak one parent or another in a sense of triumph or victory but rather introduce a more neutral tone to family proceedings; one which brings the paramountcy principle back to centre-stage and places the child’s welfare at both the heart of the order and plainly on its face.