The Christmas period for some is a time of celebration, but for others it is a time they dread. Some parents have the same battle each year about when the children will spend time with them. Many families don’t require Court Orders, but sadly others do. When making an application to resolve Christmas arrangements, there is often the bigger question of what the arrangements for the children shall be.
This can either be described as a ‘shared care’ order or a ‘lives with/spends time with’ order. A child may ‘live with’ one or both parents generally or at specified times and a ‘shared care’ order does not have to equate to an equal division of time with each parent.
The terms ‘shared care’ and ‘shared lives with’ orders derive from practice rather than statute, while the terms ‘lives with’ and ‘spend time with’ came to replace ‘residence’ and ‘contact orders via the Children and Family Act 2014.
Many practitioners understand that the difference between the orders is mostly academic – but to many parents the title is an important one. The key practical difference is that the parent with a ‘lives with’ order would be able to remove a child from the jurisdiction of England and Wales for up to 28 days without the consent of the other parent (or other individuals with parental responsibility). On a daily basis, there should be no hierarchy or power imbalance which derives directly from the order as both parents have equal parental responsibility.
However, in practice we often see one parent dictating to the other, especially where they have gained a ‘lives with’ order. There is little that can be done without returning every issue to Court for determination, which of course takes time and can be both expensive and mentally draining for the parties involved. So what is the answer?
We are pleased to have seen a sea change in both our own cases and those reported, with a move towards ‘shared lives with’ orders in appropriate cases. One of the biggest hurdles we saw in achieving this was in cases where there was an acrimonious relationship between the parents, and it was felt that a ‘shared lives with’ order would not be practical and could not work.
The Courts have seen increased reason to make such orders. This issue became central in the appeal before the Family Division of the High Court earlier this year in AZ v BX [2024] EWHC 1528 (Fam). The father appealed a decision where the lower court had considered that the acrimony between the parents meant that a shared lives with order could not be put in place. As a result, even if that was not the lower court’s intention, the father found himself in the position in which the mother exercised the upper hand in arrangements for the children and unilaterally controlled contact on the basis she had a ‘lives with’ order. Mr Justice Poole remedied this with a ‘shared care’ order.
Prior to this case, we saw in A v A (Shared Residence) [2004] EWHC 142 Mr Justice Wall make a shared residence order until the children turned eighteen. He stressed that, if the parents could work in harmony, he would have made no order as to residence. His order reflected the reality that the children divided their lives equally between the parents and the fact that the parents are equal in the eyes of the law, with equal duties and responsibilities towards the children.
Also, in Re R (Shared Residence Order) [2005] EWCA Civ 542, Thorpe LJ echoed the rationale in A v A to say that a harmonious relationship between the parents is not a prerequisite of a shared care order, and that if there was a harmonious relationship, the no order principle would likely apply. He stated that the approach by the judge of first instance to the issue of a shared residence order was “unsupportable” as he failed to understand the pace and direction of the shift in case law on the matter.
In Re W (Shared Residence Order) [2009] EWCA Civ 370, the child spent no more than 25% of her time with the father. The mother’s position was that a shared residence order would not reflect the situation. However, Wilson LJ reminded himself that statistics are of limited value in such cases, and considered that a shared residence order was not only appropriate in circumstances where the children would be spending their time evenly in the two homes.
More recently, the Court of Appeal overturned the decision of Ms Justice Russell in L v F [2017] EWCA Civ 2121, acknowledging the consideration from the judge of first instance that “equal shared care would neutralise any opportunity for one parent to seek to exert greater rights than the other”.
Mr Justice Poole helpfully highlighted the following principles which should be applied to a decision on whether to make a shared lives with order:
“i) The choice of whether to make a shared lives with order or a lives with/spend time with order […] is likely to be relevant to the welfare of the subject children and must be made by applying the principles of CA 1989 s1. […] In every case the appropriate choice of order depends on a full evaluation of all the circumstances with the child’s welfare being the court’s paramount consideration.
- ii) The choice of the form of any lives with order should be considered alongside the division of time and any other parts of the proposed child arrangements order.
iii) A shared lives with order may be suitable not only when there is to be an equal division of time with each parent but also when there is to be an unequal division of time.
- iv) It does not necessarily follow from the fact that the parents are antagonistic or unsupportive of each other that a shared lives with order will be unsuitable.”
Further, Mr Justice Poole stated that it does not follow that, because the children’s lived experience is to regard one parent’s house as their primary home, a shared lives with order is necessarily unsuitable.
It is clear that the answer to what order is the appropriate is not straightforward and requires further analysis than simply looking at who the children spend the majority of their time with or where their primary basis should be.
Court orders are not made in the vacuum, and so the court must be aware not only of the wording of the order, but of the impact such order may have on the different personalities involved in the case and – consequently but most importantly – on the welfare of the children. While the court can use its orders to encourage hostile parents to work together, they should not be drafted in such a way that is likely to result in further litigation, and therefore sometimes require a detailed schedule to be attached which can act as a fall-back position if parents cannot reach an alternative agreement.
Our experience is that a ‘shared lives with’ order allows for the feeling of equality for both parents in making decisions in the children’s lives. They also help practically in terms of travelling out of the jurisdiction. It encourages parents to work together for the benefit of the children, which is in most cases the best outcome for the children. Of course, there are some cases where shared care may not be appropriate, and it is always crucial that specialist legal advice is obtained on the facts of the individual case.
Sarah Jane Lenihan, Partner, and Isabela Maculan, Solicitor, at Dawson Cornwell.
