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This article is written by Arya Mittal from Hidayatullah National Law University. The article analyses the previously prevalent shared residence orders and the current provisions of child arrangement orders in the UK legal system.

Introduction

A divorce between parents can often be destructive for kids. They might even think the other parent to be a villain with whom they did not live. One might have even witnessed how parents fight to get custody of their child. In this whole process, the ties between the separating parents get weakened further. Moreover, it is unjust to the child to not get love from both the parents without any fault. In light of these instances, the UK legal system provided for shared residence orders by virtue of the Children’s Act, 1989. For a long time, the courts resisted issuing shared residence orders thinking that a mother is the best carer and such orders would cause instability in the life of the child. It was only in rare and exceptional circumstances that a court would grant such an order. 

This article seeks to analyze the provision of shared residence orders and the difficulties faced in granting such orders. Further, the amendment in the provision in 2014 has also been discussed along with the impact it had on English society. 

Role of the Children’s Act, 1989

The Children’s Act of 1989 was enacted to ensure the welfare and security of children by saddling the responsibility of children to parents, guardians, local authorities, courts, etc. Section 8 of the Act deals with child arrangements orders (formerly known as shared residence orders). 

Pre-amendment era

Prior to the amendment of 2014, Section 8 (of the 1989 Act) stated different orders such as residence order, contact order, prohibited steps order, and specific issue order. These orders were known as Section 8 orders. Further, Section 11(4) provided for shared residence orders i.e. an order may be issued by the court which would be made in favor of two people living separately and the child would live in different households according to the time specified by the court.

Post-amendment era

Post amendment by Section 12 of the Children and Families Act 2014, residence orders and contact orders have been removed and replaced with child arrangements orders under Section 8. The provision defines child arrangement order as an order regulating arrangements relating to:

  1. The person with whom the child is to live, spend time or have contact.
  2. The duration for which the child is to live, spend time or have contact with any person.

The definition is quite broad in its meaning. It includes with whom a child will live, the period for which the child is with a parent or a person having parental responsibility. Further, the order can even lay down with whom a child will stay in direct or indirect contact and for what duration. Direct contact includes face-to-face interaction whereas indirect contact includes voice call, video call, messaging, etc. It is to be remembered that these orders hold good only till the child turns eighteen or a greater age limit in some exceptional circumstances. 

Reason for 2014 Amendment

The amendment was important in the context of the practical difficulties being faced while issuing shared residence orders. A residence order would mean that only one parent was responsible for the child and so in the proceeding, a situation of win or lose was created. It was realized that the provision needed an amendment. With the amendment, the situation seemed to be better since now both parents could split the duration for which the child will live with each parent. Now, the child would receive care from both parents; this is favourable for the child as he would now be able to live with both parents periodically. The amendment has many psychological benefits. Both parents were now valued and both had a role to play in the development of the child. The rationale behind the amendment can be understood better after knowing the situation that was prevalent in England near the start of the 21st century. 

English case laws on shared residence orders

Traditional approach

Riley v. Riley, [1986] 

This case is before the enactment of the Children’s Act, 1989 wherein the parents entered into an arrangement according to which their daughter would stay at each parent’s house in alternate weeks. Later, the mother filed a case for sole custody of the daughter. Lord Justice held that such an order was unusual and the courts are usually reluctant to pass such an order but since the parents had consented for the same, therefore, it was permitted. Lastly, he held that a child changing house every week, with no settled home, is prima facie wrong.

Re H (A Minor)(Shared Residence), [1994] 

In this case, Lord Justice Purchas relied on the pre-1989 Children law and held that such orders merely create confusion and stress since the parents will always be competing with one another which is against the welfare and development of a child. He opined that such orders should be rarely made, only in exceptional circumstances and not in any ordinary situation citing the case of Riley v. Riley.

A v. A (Minors: Shared Residence Order), [1994] 

Even in this case, the Court of Appeal followed the previous approach taken by the judges and Lady Justice Butler-Sloss stated that in case of a shared residence order it should be proved that such an order would have a positive impact on the child; otherwise the Court will not issue such an order. Further, the Court held that such an order cannot be made in those cases where there are unresolved issues between separating parents or the parents are suffering from emotional instabilities.

Reformative approach

D v. D (Shared Residence Order), [2001] 

Yet once again, Lady Justice Butler-Sloss had a chance to adjudicate on the matter relating to shared residence orders of three children. The mother appealed against the father’s request for shared residence orders. However, this time, the Court took a progressive step. Relying on A v. A, it held that it is important to prove the positive impact of such order on the child. It is not necessary that orders will be issued only in exceptional circumstances but it must be ensured that the objective of the Act is achieved i.e. welfare and security of a child. The welfare of children is of utmost importance for courts and it must be ensured in all cases. Hence, the mother’s appeal was dismissed and shared residence orders were issued for the three children for their welfare and positive upbringing.

Re C (A Child) (Shared Residence Order), [2006] 

In this case, once again, the Court of Appeal upheld the father’s appeal against refusal of shared residence orders by the mother, reiterating that the situation should promote the child’s overall welfare. 

Impact of granting shared residence orders

With the advent of the 21st century, some developments could be witnessed in the court’s approach towards granting shared residence orders. Unlike previously, the courts were now not so reluctant in granting shared residence orders and would grant such an order even in usual circumstances if such an order would ensure the overall welfare of the child and would not have a negative impact on the upbringing of the child. Analyzing this development reveals that it is a good move by the English Courts in the right direction of ensuring justice. This is so because granting a shared residence order only in cases of resolved issues was quite impractical. There is no doubt that the separating parents would not have separated if they had no issues or did not go through any emotional difficulties or instabilities. Therefore, such a prerequisite can have catastrophic effects on society since hardly any case could fulfill this prerequisite.

Positive impacts of this progressive step

Granting shared residence orders has surely been a boon in the lives of many children. A child would no more think that only one parent has a role to play which will vilify the other parent in the mind of the child. Moreover, a child would have fewer financial difficulties since he/she will have support from both parents. This even eases out the financial burden of parents. Additionally, a child would have love from both parents which will have a positive impact on his/her upbringing. A famous slogan that emerged during this time says, “Divorce is for adults, not children”. This simply meant that the decisions of parents should not hamper the life of a child who is entitled to receive love and care from both mother and father. Lastly, there existed an age-old rule that the mother should get the residence order of the child and the father should only be restricted to contact order for the reason that a child needs a mother more and also because of the mindset that mothers are more caring and sensitive. This rule somewhat lost its relevance and shared residential orders were normalized.

Delving into the realistic problems of time and allocation of care

However, these developments also faced certain difficulties. Though shared residence orders could be issued, problems arose relating to time and care. It could not be comprehended how the distribution of time and care will take place between the parents. Moreover, it was argued that shared residence of children had led to instability in a child’s life. By changing home now and then, it gets difficult for a child to adjust frequently which might negatively impact the child.

Impact of thr 2014 amendment

  • Undoubtedly, the amendment in 2014 which replaced shared residential orders with child arrangement orders made the situation much better. Section 1 of the Act (amended by Section 11 of the Children and Families Act 2014) states that there is a presumption in favor of each parent that the presence of such parent in a child’s life will promote his/her welfare. This is commonly known as the presumption of parental responsibility. The provision has significantly changed the status of those parents who earlier had very less role to play in a child’s life. 
  • Secondly, replacing contact orders and residence orders with child arrangement orders would mean that there is no ‘one caring parent’ and both parents will be responsible for the upbringing of the child. 
  • This would even prevent the win or lose situation that existed between the parents previously. With the amendment, both parents will feel valued and even the child would get love and care from both parents.
  • A child arrangement order does not necessarily imply that one parent can decide on crucial decisions of a child’s life such as school, career, etc. This is yet another benefit because though both parents will be a part of the child’s life yet no one parent can have a right to solely take decisions affecting the future of the child.
  • There is no hard and fast rule that both parents should take care of the child for an equal time. It is absolutely alright if the child stays for five days a week at one parent’s house and for the rest two days at the other. This is favourable for parents and children in today’s world where both parents are working. So while one parent is at work, the other can care for the child and vice-versa. 

Conclusion

From granting shared residence orders in exceptional circumstances to the presumption of parental responsibility, the provision of child arrangement orders has taken a long time to evolve to become its present form. The role of the amendment had been significant for the life of a child for the above-mentioned reasons. Lastly, it is commendable how the system has been able to emphasize with its people upon qualitative factors such as love and care. 

References


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