W (A Child)

A shared residence order may be made where it positively serves the child’s welfare. Neither an approximately equal division of time nor unusual or exceptional circumstances is required. The order may confirm the practical reality of the child’s life or benefit the child indirectly by emphasising the parents’ equal responsibilities.

Parental disharmony is neither a bar to shared residence nor, by itself, a reason for ordering it. Its consequences, including the sustained marginalisation of one parent, may nevertheless support such an order.

Where parents living in separate households share residence, the order may specify when the child is to live in each household. A contact order cannot be granted to a person in whose favour shared residence has been ordered.

The mother appealed from an order of the Bromley County Court granting shared residence of an eight-year-old child to both parents. The parents had agreed the periods during which the child would stay with the father, leaving only the form of the residence order in dispute.

The recorder concluded that shared residence would emphasise the equality of the parents’ responsibilities and thereby benefit a child who wanted a full relationship with each of them. Her order also described the agreed periods with the father as contact.

The issues were whether shared residence required an approximately equal division of the child’s time or unusual circumstances, whether parental disharmony justified the order, and whether a contact order could coexist with shared residence in favour of the same parent.

1. Disposition. The Court of Appeal unanimously dismissed the mother’s appeal. The recorder had exercised her discretion properly in concluding that shared residence served the child’s welfare. The order was, however, to be redrawn so that the periods spent with the father were not described as contact.

2. A shared residence order is no longer unusual. The governing question is whether circumstances positively indicate that the child’s welfare will be served. Neither unusual or exceptional circumstances nor an equal or nearly equal division of time between the parents’ homes is required. Percentage calculations concerning time or overnight stays are ordinarily of limited value.

3. Shared residence may legally confirm the factual reality of a child’s life. It may also be psychologically beneficial by emphasising the parents’ equal position, duties and responsibilities. The recorder was entitled to find that this emphasis would indirectly benefit a child who needed and wanted a full relationship with both parents.

4. Parental inability to work in harmony is not, by itself, a reason either to refuse or to make a shared residence order. The decision in A v A (Shared Residence) [2004] EWHC 142 meant that disharmony made some residence order preferable to no order. The equal division of the children’s lives and the importance of equal parental responsibility then supported shared residence. A consequence of disharmony, such as one parent’s deliberate and sustained marginalisation of the other, may sometimes favour shared residence.

5. Under Section 11(4) of the Children Act 1989, a shared residence order concerning persons in separate households may specify when the child is to live in each household. Section 8(1) defines contact by reference to contact with another person. It is therefore contradictory to grant a contact order to a person who already holds shared residence. The agreed periods with the father had to be recorded as periods of residence.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously, save that the recorder’s order was to be redrawn so that periods spent with the father under shared residence were not described as contact: [2009] EWCA Civ 370.

2. Bromley County Court: Miss Recorder Venters QC made a shared residence order in favour of both parents and included the agreed periods with the father within a contact order. She granted the mother permission to appeal.