Children and the Law !"#$#&"'()*#+,&-./$#&(0/-,'1,12.3'($'2&".$#*$#&,*#14#,1516).1*.1* 7.)#& ,1 4.& 8"#$# ,- ,& &'(6"-9 :,&4(&&9 Parental separation affects many children and their families. Some three million of the twelve million children in this country have experienced the separation of their parents. Eachyearbetween150000and200000parentalcouplesseparate.Wheretheprocessof separation is handled well, the adverse impact on children is minimised. Where separation goesbadlyand,inparticular,wherechildrenaredrawnintoparentalconflict,thenthe effectscanbeprofoundlydamagingforchildren.1Thereareahighnumberoffamilies breaking down in Britain as in the rest of the world, sometimes durably affecting the lives of the children involved. When the family breaks down, a number of situations can arise: the children can live with one of the parents exclusively (residence), live with one parent whilestillregularlyspendingtimewiththeother(contact),orlivewithbothparents, sharing their time between their two parents (shared residence).Some people feel that the law is unjustly weighted in favour of mothers2, who would usuallygetresidencewhilethefatherswouldbepushedawaybythecourt.However,in 2005,theHouseofCommonsConstitutionalAffairsSelectCommitteerejectedthose claims, saying that the family courts were not consciously biased against fathers.3 Research in20084showedthatinreality80%ofthechildrenlivedwiththeirmother,whileonly 12%sharedresidencebetweentwoparentsalthoughithastobenotedthatinquitea numberofcircumstances,parentswerenotseekingtogetsharedresidence.Considering those numbers, some have been thinking that there should exist a presumption in favour of

1ParentalSeparation:ChildrensNeedsandParentsResponsibilities(Cm.6273,2004,Ministerial Foreword) 2 Bainham et al (eds.), Children and their Families: Contact, Rights and Welfare (2003) Hart Publishing. 3 Family Justice: The Operation of the Family Courts, HC 116-1, March 2005. 4 Peacey, Vicky, and Hunt, Joan, Problematic contact after separation and divorce, Gingerbread, July 2008. sharedresidenceincaseswhereitissought.WilliamFarrell5,basedonthirteenyearsof research,hasfoundthatwhileintactfamiliesarethebestoptionforchildren,whenthe family breaks down equal parenting time with both parents is almost always far better for children. Sharedresidenceisobtainedthroughasharedresidenceorder,asmentionedin s11(4)ChildrenAct19896:Wherearesidenceorderismadeinfavouroftwoormore persons who do not themselves all live together, the order may specify the periods during whichthechildistoliveinthedifferenthouseholdsconcerned.Accordingtos8(1)CA 1989, it is settling the arrangements to be made as to the person with whom a child is to live.Sharedresidenceisusuallyviewedasmeaningthatthechildwillspendtheexact sameamountoftimewitheachparent.However,itdoesnothavetobeso:shared residenceexistsassoonasthechildlivesindifferenthouseholds,andisdecidedbythe court. There are arguments both in favour and against shared residence; and even if shared residenceprovedtobebeneficialtochildren,wouldpresumingitisalwaysthebest solution be in the childrens best interest? 1) In favour of shared residence orders. Thecourtshavenothesitatedtorecognisetheneedforchildrennottobedeprived fromoneoftheirparents.ItwasheldinReR(AMinor)(Contact)[1993]7that[it]isa rightofachildtohavearelationshipwithbothparentswhereverpossibleandthatin general the parents with whom the child does not live has a continuing role to play, which isrecognisedbys.2(1)oftheChildrenAct1989.S2(1)CA1989mentionsparental

5Farrell,Warren,FatherandChildReunion:HowtoBringtheDadsWeNeedtotheChildrenWeLove (2001) Tarcher. 6 Hereafter referred to as CA 1989. 7 Re R (A Minor)(Contact) [1993] 2 FLR 762. responsibility that both parents will usually have; granting shared residence emphasises the fact that both parents are equal in the eyes of the law, and that they have equal duties and responsibilitiesasparents,asWallLJanalyseditinReP(Children)(SharedResidence Order) [2005]8. Outside of the UK, Europe has also recognised the importance of spending time with both parents. Article 8 of the European Convention on Human Rights highlights the right foralltofamilylife.AsitwasheldinHoppev.Germany(ApplicationNo28422/95) [2003]9,themutualenjoymentbyparentandchildofeachotherscompanyconstitutesa fundamental element of family life; and although the European Court of Human Rights did notwanttosubstituteitselfforthedomesticauthorities,theyinsistedonthecrucial importance of the best interests of the child. The European Convention on Human Rights hashadfullforceinBritainsincetheHumanRightsAct1998,andisfurtherreasonto consider shared residence when possible. Research all over the world also shows that in most cases, shared residence provides for happier families. Sharlene Wolchik, looking into the differences between maternal and shared residence in the US, found that both boys and girls in joint custody arrangements reportedexperiencingagreaternumberofselfdefined,aswellasconsensuallydefined, positiveexperienceswithinthepastthreemonthsthandidchildreninmaternalcustody arrangements.10 In Australia, Patrick Parkinson and Bruce Smith showed that parents with sharedcarearrangementsaremorelikelytobesatisfied11;andhappierparentsmakefor happierchildren.RobertBauserman12alsolookedatwasatthetimecalledsole-custody andjointcustody:hefoundthatmorecontactwithaless-seenparentisassociatedwith

8 Re P (Children)(Shared Residence Order) [2005] EWCA Civ 1639. 9 Hoppe v. Germany (Application No 28422/95) [2003] 1 FLR 384. 10Wolchiketal,(1985);MaternalVersesJointCustody:ChildrensPost-separationexperiencesand adjustment 11 Parkinson, Patrick, Smyth Bruce (2003) When the Difference is Night and Day: some empirical insights into patterns of parent-child contact after separation. 8th Australian Institute of Family Studies Conference.12BausermanRobert(2002),Childadjustmentinjointcustodyversussole-custodyarrangements:ameta-analytic review. Journal of Family Psychology 2002, Vol 16 No 1, 91-102. happierchildren,sojointparentingarrangementsarelikelytobebetterforchildrenthan sole-parentingones.Helaterconfirmedthisassumption,findingthatchildreninjoint custody rather than sole-mother custody are more satisfied with their arrangements, and are better adjusted.Considering all this research, it appears that granting shared residence orders may be thebestsolutionforbrokendownfamilies.However,inquiteanumberofcases,the familiesarenotlookingtoobtainsharedresidence.Whenoneoftheparentshasleftthe family home and does not particularly want to spend time with their children, there is little pointinforcingsharedresidenceonthem:theorderwillmostlikelynotbebeapplied, making for difficulties and unhappy children. 2) Against a shared residence order. AlthoughWarrenFarrell13hasfoundinovertwohundredstudiesthatequaltime almost always better, a lot can be said against shared residence orders. Themostimportantargumentagainstitisthegenderedrealitiesofparentingthat RichardCollier14helpedanalyse.Inthelastfewdecades,therehasbeenasteadily increasingtrendofgenderequality:womenworkmoreandmoreoften,andfathershave been seen to be the stay-at-home parent. Subsequently, families may have relied less on the mansincome,andchildrenmayhavebeenspendingasmuchtimewiththeirfatherand theirmother.However,despitewhatsomewouldliketothink,itappearsthatmothers often play a very important part in their childrens lives. The Commission of Equality and HumanRightsshowedthatin200989%offathersworked,asopposedtoonly63%

13Farrell,Warren,FatherandChildReunion:HowtoBringtheDadsWeNeedtotheChildrenWeLove (2001) Tarcher. 14Collier,Richard(2001)'Insearchofthegoodfather:law,familypracticesandthenormative reconstruction of parenthood', 22 Studies in Law, Politics and Society 13369. mothers,overhalfofwhomonlyworkparttime.Thislesserpercentageofmothers workingmeansthatthemotherwillusuallybetheonespendingthemosttimewiththe child(especiallywhenthechildisveryyoung).Thisrealitymeansthatthemotherwill moreoftenthannotbetheprimarycarerforthechild,leadingtoreallystrongbonds betweenthem.Thefather,inturn,routinelyistheprimaryearner:thefamilydependson himfinanciallytolive.Asharedresidenceordermeansthatthechildrenwillspendtime withtheirmotheraswellaswiththeirfather.However,thechildrenmaybemore connectedtohismother,beingtheprimarycarer,thantotheirfatherthattheywouldsee lessoften.Furthermore,thefatherwillcommonlybespendingalotoftimeatwork, especially so since he would now have to provide for his ex-partner as well as for the new family he may have: this makes for less time the father to care for the children when they areresidingwithhim.Inthesecircumstances,establishingthatthechildrenshouldspend quiteaportionoftheirtime(althoughmaybenothalfofthetime)withtheparentthey know less and will have less time to give them may not be very wise.With this context in mind, it makes sense that in more than a small number of cases thechildrenwillroutinelyseetheparenttheydonotlivewithforasmalleramountof time.Beforearesidenceorderissought,thechildrenarealreadylivingwithoneoftheir parents, and a routine is usually established by the time the family goes to court. In cases where the children have not been in contact a lot with the parents they are not living with, it does not make sense for the court to grant a shared residence order. As it was held in A v. A (Shared Residence) [2004]15, [w]here children are living with one parent and are either notseeingtheotherparentortheamountoftimetobespentwiththeotherparentis limited or undecided, there cannot be a shared residence order.

15 A v. A (Shared Residence) [2004] EWHC 142 (Fam), [2004] 1 FLR 1195. Thisisespeciallythecasewheresexualoffenceshavebeencommittedagainstthe children by one of the parents. Although sharing time between the parents may come from goodsentiment,keepingthechildrenawayfromtheparentthathashurtthemmaybea better idea. Evenwhereasharedresidenceorderisgiven,thecourtmustbecarefulnotto establish in the publics minds the idea that shared residence implies a similar right for the parents to see their children for the same amount of time or under the same circumstances. AsDavidNorgroveputitinaFamilyJusticeReviewfromMarch2011,Nolegislation shouldbeintroducedthatcreatesorriskscreatingtheperceptionthatthereisaparental right to substantially shared or equal time for both parents.16 The Law Society concurred, concludingthatsuchpresumptionriskssubordinatingachildsbestintereststothe parents expectations of equal rights. 3) Should there be a presumption in favour of shared residence? Accordingtoresearch,sharedresidenceseemstobemostlybeneficialforchildren, except in some cases. But does that mean that there should be a presumption in favour of sharedresidence?Suchapresumptionwouldmeanthatwhateverthecircumstances, shared residence would become the norm unless one of the parents (or the children) rebut the presumption. Astrongargumentagainstthispresumptioncomesfromtwodifferentrealisations: circumstanceschange,andthosechangesarebetterdealtwithbypeoplewhohavebeen partoftheoriginaldecision-makingprocess.AsitwasheldinHolmes-Moorhousev

16Norgrove,David,FamilyJusticeReview:InterimReport,March2011.Online: (http://www.justice.gov.uk/downloads/publications/moj/2011/family-justice-review-interim-rep.pdf).Last accessed on Feb. 17th, 2013. Richmond-Upon-ThamesLondonBoroughCouncil[2009]17,Notonlythat,the arrangements made when the couple separate are bound to have to change over time, as the children grow up and their own and their parents circumstances change. Parents who have beenableorhelped,throughmediationorinotherways,toagreeasolutionattheoutset are more likely to be able to negotiate those changes for themselves, rather than to have to return to court for further orders. Thecourtsopiniononthisquestionhaschangedovertime.In1988,theLaw Commission saw no reason why shared residence orders should be actively discouraged18. However, the courts seem to think that shared residence orders were not their best option. In Re H (A Minor)(Shared Residence) [1994]19 the Court of Appeal had held they should bemadeonlyinexceptionalcircumstances;inAv.A(Minors)(SharedResidenceOrder) [1994]20,thejudgesconcludedthattheordersshouldonlybemadeiftherewasaclear positive benefit for the child.However,ajudgmentin1991hadhighlightedtheimportanceofthebestinterest principle. In Re S (Custody) [1991]21, the Court of Appeal decided that there should be no presumptioninfavourofanyparent.Thechildswelfarewasthefirstandparamount consideration:thereisnolegalpresumptioninfavourofoneparentoveranother,even thoughinpracticeasmallchildisusuallybetteroffwithitsmother,andthejudgewas wrong to prefer his discretion over the magistrates. This was confirmed in 2001 in D v. D (Shared Residence Order) [2001]22, where the CourtofAppealheldthatitwasnotnecessarytoshowthatexceptionalcircumstances

17 Holmes-Moorhouse v Richmond-Upon-Thames London Borough Council [2009] UKHL 7. 18 Report on Custody and Guardianship (No 172, 1988). 19 Re H (A Minor)(Shared Residence) [1994] 1 FLR 717. 20 A v. A (Minors)(Shared Residence Order) [1994] 1 FLR 669. 21 Re S (Custody) [1991] 2 FLR 388. 22 D v. D (Shared Residence Order) [2001] 1 FLR 495. existedbeforeasharedordercouldbegranted;andneitherwasitnecessarytoshowa positive benefit to the child. The Court of Appeal held that what must be shown is that the sharedresidenceorderisinthechildsbestinterestsinaccordancewiththewelfare principle.Inthisparticularcase,thesharedresidenceorderwasnecessarytolessenthe animosity between the parties, hence benefitting the child. Those cases highlight the growing importance of the childs welfare as mentioned in s1 CA 1989: the childs welfare shall be the courts paramount consideration. The courts areactuallyexpectedtotakeintoaccountthreedifferentprincipleswhentheyexercise their powers to make a residence order, all mentioned in s1 CA 1989: the welfare principle (s.1(1)),thenodelayprinciple(s.1(2))andtheminimuminterventionprinciple(s.1(5)). None of these principles is more important than the others. Thenodelayprincipleisthatanydelayindeterminingthequestionislikelyto prejudicethewelfareofthechild.23Thecourtsshouldtaketheirdecisionasquicklyas possibleconsideringthetwootherprinciples.Theminimuminterventionprinciplemeans thatthecourtshouldrefrainfrommakingadecisionifthisdecisionwouldbeinthe detriment of the child, or if making it would make no change to the child.24 As far as the welfare principle is concerned, s1(3) CA 1989 gives a list of factors the court should take into account while making their decision. For example, in Re F (Shared Residence Order) [2003]25, a shared order was made even though the parents homes were a considerable distance apart. In Re M (Residence Order) [1998]26, the children needed to be kept together and they wished to spend time with each parent and needed to enjoy the benefitsofbeingwithbothparents;WallLJhelditwasaparadigmcaseofwherea

23 Children Act 1989, s1(2). 24 Children Act 1989, s1(5). 25 Re F (Shared Residence Order) [2003] EWCA Civ 592, [2003] 2 FLR 397. 26 Re M (Residence Order) [1998] EWCA Civ 66. sharedresidenceordershouldbegranted.InReA(SharedResidence:Parental Responsibility)[2008]27,theorderwasmadetoconferparentalresponsibilityonaman who was not the biological father of the child. In 1991, it was written in the Children Act 1989 Guidance and Regulations28 that it is not expected that [shared residence order] would become a common form of order, but that it had the advantage of being more realistic in those cases where the child is to spend considerableamountoftimewithbothparents.Yearslater,StephenGilmore29analysed that the courts approach to shared residence orders is unclear, but that childrens views are important.Itappearsthatindeed,eachcaseneedstobeapproachedconsideringitsown facts, and be decided for the childs best interest. A presumption of any kind does not do so.

27 Re A (Shared Residence: Parental Responsibility) [2008] 2 FLR 1503. 28 Children Act 1989 Guidance and Regulations, Volume 1 (1991), Court Orders. 29 Gilmore, Stephen , Court decision-making in shared residence order cases: a critical examination (2006) CFLQ 478. Legislation: - Children Act 1989. - Children Act 1989 Guidance and Regulations, Volume 1 (1991), Court Orders. - European Convention on Human Rights 1953 - Family Law Reform Act 1969. - Human Rights Act 1998. - United Nations Convention on the Rights of the Child 1989. Case Law:- A v. A (Minors)(Shared Residence Order) [1994] 1 FLR 669. - A v. A (Shared Residence) [2004] EWHC 142 (Fam), [2004] 1 FLR 1195. - D v. D (Shared Residence Order) [2001] 1 FLR 495. -Holmes-MoorhousevRichmond-Upon-ThamesLondonBoroughCouncil[2009]UKHL 7. - Hoppe v. Germany (Application No 28422/95) [2003] 1 FLR 384. - Re A (Shared Residence: Parental Responsibility) [2008] 2 FLR 1503. - Re F (Shared Residence Order) [2003] EWCA Civ 592, [2003] 2 FLR 397. - Re H (A Minor)(Shared Residence) [1994] 1 FLR 717. - Re M (Residence Order) [1998] EWCA Civ 66. - Re P (Children)(Shared Residence Order) [2005] EWCA Civ 1639. - Re R (A Minor)(Contact) [1993] 2 FLR 762. - Re S (Custody) [1991] 2 FLR 388. Articles: -BAUSERMANRobert(2002),Childadjustmentinjointcustodyversussole-custody arrangements: a meta-analytic review. Journal of Family Psychology 2002, Vol 16 No 1, 91-102. - CASHMORE, Judy and PARKINSON, Patrick, What Responsibility do Courts Have to Hear Childrens Voices? 15 International Journal of Childrens Rights 43 (2007). -COLLIER,Richard(2001)'Insearchofthegoodfather:law,familypracticesandthe normative reconstruction of parenthood', 22 Studies in Law, Politics and Society 13369. - Family Justice: The Operation of the Family Courts, HC 116-1, March 2005. -GILMORE,Stephen,Courtdecision-makinginsharedresidenceordercases:acritical examination (2006) CFLQ 478. -NORGROVE,David,FamilyJusticeReview:InterimReport,March2011.Online: (http://www.justice.gov.uk/downloads/publications/moj/2011/family-justice-review-interim-rep.pdf). Last accessed on Feb. 17th, 2013. -ParentalSeparation:ChildrensNeedsandParentsResponsibilities(Cm.6273,2004, Ministerial Foreword) - PARKINSON, Patrick, SMYTH Bruce (2003) When the Difference is Night and Day: some empiricalinsightsintopatternsofparent-childcontactafterseparation.8thAustralian Institute of Family Studies Conference.-PEACEY,Vicky,HUNT,Joan,Problematiccontactafterseparationanddivorce, Gingerbread, July 2008. - Report on Custody and Guardianship (No 172, 1988). Books: - ALSTON, Philip, The Best Interests of the Child: Reconciling Culture and Human Rights, Oxford, 1994. - BAINHAM ET AL (eds.), Children and their Families: Contact, Rights and Welfare (2003) Hart Publishing. -FARRELL,Warren,FatherandChildReunion:HowtoBringtheDadsWeNeedtothe Children We Love (2001) Tarcher. - FORTIN, Jane, Children's Rights and the Developing Law (3rd edn), Cambridge, 2009. -HALE,PEARL,COOKEandMONK,TheFamily,LawandSociety:CasesandMaterials (6th edn), Oxford University Press, 2008. -WOLCHIKETAL,(1985);MaternalVersesJointCustody:ChildrensPost-separation experiences and adjustment