Separating parents may find it difficult or even impossible to reach an agreement in relation to the care of their child. In such situations some couples either unconsciously or otherwise, seek to find a solution that they feel is fair to them. Often this is for the care of the child to be shared equally, with each parent having care of the child for the exact amount of time as the other. This arrangement is based on what they believe is a fair and equal share of their child’s time.
The paramount consideration in these matters is always the welfare of the child and the impact care arrangements have upon them. The court does not concern itself with the parents’ view of their own rights or needs and is able to assess objectively the best course of action.
When the family courts are required to determine any question relating to a child, the court will consider a number of factors that are contained within the “welfare checklist”. These include:
a) The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
b) The physical, emotional and educational needs;
c) The likely effect on him if any change in his circumstances;
d) His age, sex, background and any characteristics of his which the court considers relevant;
e) Any harm which he has suffered or is at risk of suffering;
f) How capable each of his parents, and other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
g) The range of powers available to the court under this Act in the proceedings in question.
For many years Judges have commented on the need for a child to call one address his home, rather than move between two homes at very regular intervals, sometimes as often as every two to three days. This is not creating a stable home life for the child and begs the question; is this arrangement meeting the needs of the child or the needs of the parents who feel they have the right to an equal amount of their child’s time?
Legislation has changed in recent years and has given parents in many cases equal Parental Responsibility for their child. This is equal for both parents and as such does not allow one parent to have superior rights or responsibilities over the other. It was thought that this would assist in resolving disputes about parenting time. Unfortunately this has not proved to be the case.
Lord Justice MacFarlane in a 2014 case commented; “It is still the case that 50/50 shared care arrangements between parents are comparatively rare in private law children cases. Research shows that a number of factors have to be in place, practical matters such as the close geographical proximity, but, above all, the couple have to be on reasonable or good terms so that the to and fro of every day life for a child is accommodated without undue emotional fallout.
“There is no longer any need, because of the change in the legislation, to impose a “shared” order under section 8. Both parents have equal status. So a division of time 50/50 will remain, in my view, a rare order and only to be contemplated where there is some confidence that it will not work to the disadvantage of the child, albeit that the aim is to give good quality and substantial time with each parent’.”
Some families have established a routine where the child does thrive in a shared care routine, but this does not need to be for equal amounts of time, and in my experience happens where both parents are actively promoting the child’s relationship with the other parent. If there is no animosity between the parents the shared care arrangement is given a real chance of success. Without that commitment and mutual respect, a shared care arrangement is more difficult and I am aware of some Judges being unwilling to make a shared care order where the parents are not demonstrating the required levels of co-operation.
In my experience another occasion when shared care orders are considered is when the court seeks to send a very clear message to both parents that neither one has control or power over the other. This may be in cases where there is an attempt to exclude or alienate the other parent and an order that states the child shall live with one parent will only further strengthen the potential for excluding the other parent further.
I expect shared care orders, particularly where the time is shared equally, will remain relatively rare. In certain circumstances they are appropriate, but only when they will assist in furthering the welfare of the child concerned.
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