A v A & Ors

A shared residence order is appropriate where children spend substantial and meaningful periods living with both parents and the order reflects the reality of their lives. It is not an exceptional order and is not made merely to recognise equal parental status. The court must consider the children’s welfare and whether making an order is better for them than making no order. Where parental conflict makes an order necessary, the court may use shared residence to recognise equal parental responsibility and discourage one parent from exercising control over the other. Such an order is not a panacea: it depends on workable practical arrangements and does not itself resolve hostility. In exceptional circumstances, residence and restrictions on further applications may extend until the children reach majority.

The proceedings concerned two children whose parents had separated in 1997. After prolonged and hostile litigation, contact between the children and their father became severely disrupted, accompanied by allegations of sexual impropriety which the court rejected after a finding-of-fact hearing. The children later settled into a successful arrangement under which they spent equal periods with each parent.

At the final directions hearing, the father sought retention of sole residence in his favour. The mother, the children’s guardian and NYAS supported shared residence, defined shared care and restrictions on further applications. The central issues were whether a shared residence order accurately reflected the children’s lives, whether any order was necessary, and whether the proposed orders could extend until the children reached 18.

1. Orders made. The court made a shared residence order, consequential arrangements designed to secure equal periods with each parent, an order under section 91(14) of the Children Act 1989, and residence orders lasting until the children reached 18.
2. A shared residence order settles where a child is to live. It should reflect the reality that children live with both parents. Where children spend substantial time with each parent, the order is not exceptional and should be made if it serves their welfare. Equal division of time is not essential.
3. The authorities, including D v D (Shared Residence Order) [2001] 1 FLR 495, Re A (Children) (Shared Residence) [2002] 1 FCR 177 and Re F (Shared Residence Order) [2003] 2 FLR 397, established that residence orders concern where children live, not parental status. A shared residence order may be inappropriate where a child is not living with, or is unlikely to visit, one parent.
4. Under section 1(5) of the Children Act 1989, no order should be made unless it is better for the children than making no order. Here, an order was necessary because the parents could not work harmoniously and a sole residence order risked being interpreted as conferring control on the father. Shared residence better reflected both the children’s equal living arrangements and the parents’ equal legal responsibilities.
5. The court considered section 91(14) sufficiently flexible to underline the end of six years of litigation where the agreed regime met the children’s needs. Section 9(6) permitted residence orders beyond age 16 because the circumstances were exceptional. The court declined to adopt the section 37 approach discussed in Re M (Intractable Contact Dispute: Interim Care Order) [2003] 2 FLR 636, since urgent respite was required and removal to foster care or local-authority intervention was unsuitable.

First-instance decision. No appellate history is stated in the judgment.