Shared Care Orders

Following a separation, many parents apply to Court for a child arrangements order to formally set out the living arrangements for the child/children, known as a shared care order. Any person including a parent, grandparent, guardian or any other person may apply for an order in this way, as long as they have what is known as ‘parental responsibility’ for the child (or children).

The process can be fairly lengthy and involve a number of hearings, depending upon how willing the parties to the application are to resolve matters themselves. If ultimately they are unable to agree and a Judge or Bench of Magistrates is required to decide how the child arrangements should be managed, they will do so at what is called a final hearing

Once their decision is made, the Court may frame the order in one of two ways. It could state that the child will live with one parent and ‘spend time with’ the other, or it could state that the care of the child is ‘shared’ between the parents. Either way, the order will clearly set out exactly which days the child spends where.

Whenever a Court is asked to make any decision in relation to children, the children’s welfare is its paramount concern. Under section 1(3) of the Children Act 1989, the Court has a checklist of factors to consider when deciding what is in the child’s best interest, including but not limited to:

• The wishes and feelings of the child;
• The child’s needs; the likely effect on the child of any change in circumstances;
• And any harm that the child has suffered or is at risk of suffering and how capable each of the parents are of meeting the child’s needs.

Presuming that the child wants to see both parents, that they are not likely to suffer any harm and both parents are equally capable of meeting their needs, in principle, there should be no reason why a shared care order would not be appropriate. An order that, in its wording, clearly states that the parents share the care of the child will often impact how the parents perceive themselves – they have been formally recognised as equal carers and so the parents may feel that this emboldens their roles as neither one of them is the ‘better’ or ‘preferred’ parent.

Until recently, a shared care order was somewhat rare and thought only to be made in exceptional circumstances. The Court considered that a child should have a settled home with one of his/her parents. Now, however, there is no need for exceptional circumstances, and a shared care order can be made as long as it is in the best interests of the children. It does not need to be limited to cases where the children spend equal amounts of time with each parent and can be granted no matter what the division of time is. Therefore, even if the child or children spend 6 days per week with one parent and just one day with the other, those parents could still have an order expressing that the child’s care is shared between the two of them.

But what is the practical effect of having one of these orders? Other than the fact that a shared care order highlights the importance of both parents providing an equally important level of care, it also has some implications on the care of the children.

One of those implications is that, where a child arrangements order says that the child is to ‘live with’ parent number 1 and ‘spend time with’ parent number 2, parent number 1 is automatically able to take the child out of the UK, for periods of less than one month, without parent number 2’s consent. By contrast, where a shared care order is in force, written consent is required from every person who has parental responsibility whenever one person wishes to take the child out of the UK. So, for shared care orders, neither parent can take the child out of the UK for any period of time whatsoever unless the other parent agreed to it (or they obtained leave from the Court).

As a result, a ‘lives with’ order puts the parents on unequal footing – one needs to seek consent each time they wish to take the child out of the UK for less than one month, and the other does not – this somewhat undermines the second parent’s role and importance. Often, however, the Court will add a direction into these orders to the effect that authorisation is always given, so, if relations between the parents are really bad and one will not agree to the other taking the children away, there is no need for repeated applications to Court each time. This also goes towards levelling the playing field with regard to the imbalance that ‘lives with’ and ‘spends time with’ orders imply onto the perceived roles of the parents.

Overall, shared care orders can be hugely beneficial, symbolically, in the eyes of both parents and the children who are subject to them. The law clearly recognises this as it already moved in the right direction in 2014 when the Children and Families Act replaced what was previously known as ‘residence and contact’ orders with child arrangement orders. The former would name a ‘resident’ parent and a parent who had ‘contact’, therefore implying that only one parent should have the responsibility of the children’s home being with them. Simply calling them child arrangements orders made a huge difference.

Further, a shared care order goes even further to assist with the perception of both parents having equal importance in the upbringing of their children. This symbolism may seem minor and inconsequential where Court directions can remove any automatic, unwanted effects of a ‘lives with’ order, however, being seen as equal on paper could make a big difference to parents. For example, where a father feels that he is less important than the mother due to the traditional societal view of men’s roles as money-makers, not carers.

For legal advice as to how to go about obtaining a child arrangements order, shared care order or any other family-related matter, please contact us.