What does Shared Care actually mean?

The Children and Families Act came into effect in 2014. It emphasizes that both parents of children have equal status as parents following the breakdown of their relationship with one another. The Act was felt by some likely to lead to an increase in Court proceedings started mainly by dads not living with their children as much as they would like, aiming to ask the Court for guidance as to what shared care actually means.

Prior to the Children and Families Act 2014 there were a number of cases much emphasised that shared care didn’t mean 50/50. The terminology of shared care was felt important in some cases to reinforce that both parents had equal status as parents of their children following the relationship breakdown. It follows that this thinking would be applied to those families where relations between parents were poor after separation and that one parent’s perception was that he/she had enhanced rights above the other because their children lived with them for more time. The Court looked to reinforce that both parents were parents with equal status even if mum and dad did not care for the children 50/50.

The recent case of M(A Child) [2014]EWCA Civ 1755 gives guidance as to the likelihood of shared care arrangements being Ordered by the Court after the Children and Families Act has come into force. This case involved a Tanzanian couple who lived in London. The dad had older children from a previous relationship, two of whom were at university. The application related to their son aged 5½ years. Dad applied to the Court for the son to live with him permanently, which was responded to by the mother taking her son to Newcastle to live there permanently with him. She did so without the consent of dad or the Court. The distance between the two homes posed problems for a shared care arrangement. The trial judge dealt with this by ordering a shared care arrangement dependent upon the mother’s agreement to return to live in London yet he did not expressly make it a condition of the Order that the mother return. 

On appeal the Judge 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 fall out.

There is no longer any need, because of the change in 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.”

Many dads in particular will no doubt think this bad news but a recent study of 200 cases concluded during 2011 has found that dads are treated fairly through the family Court and are “overwhelmingly” successful in obtaining Court Orders that confirm periods of time their children are to spend with them. Historically these Orders were access or contact orders and are now since Children and Families Act called child arrangement orders. The study, conducted by the University of Warwick and University of Reading and funded by the Nuffield Foundation concludes:- “there was actually no indication of any bias towards mothers over fathers by the courts”.

The report confirms that the social reality is that women are often more likely to take on the practical role of looking after children for more of the time following the breakdown of a relationship: Women are more likely than men to have given up work to raise children, or work part time and/or flexibly and the report concludes that the Courts have a reluctance to interfere significantly with the “status quo” i.e. who children live with for most of the time. The report also raises a concern that those parents pursuing orders for shared care may be motivated by a desire to achieve fairness between adults who have separated rather than meet the needs of their children.

This all seems to suggest that whatever dads may feel,  the independent research concludes that the Court system is doing its job in recognising in law that both parents are to be involved in the upbringing of children and in making Orders which may not be labelled “shared care”, but nevertheless ensure dads spend time with their children. 

This study of Court cases concluded in 2011 has however to be viewed in the context of the number of applications to Court relating to children steadily falling post large scale withdrawal of the legal aid system in 2013. The report does raise concerns that the cuts to legal aid are threatening access to the Court system. The overall picture is complex given recent rapid changes in legislation and there may be other reasons for the drop in numbers applying to the Court, such as disputes being resolved through family mediation.

Of greater anxiety to parents is perhaps a recent analysis of legal aid data regionally which raises a potential abuse by some of what remains of the legal aid process. Legal aid can still be obtained in many instances by victims of domestic violence to help with the cost of legal representation.  Statistically these applicants are women who often have children. It’s not easy to get legal aid as a victim of domestic violence and there are a number of administrative hoops to jump through. Some victims believe these hoops to be unfair. A further recent study has concluded that 39% of domestic violence victims cannot obtain legal aid because they don’t have corroborative evidence e.g. accommodation in a refuge, criminal conviction or injunction. No-one seeks to minimise the devastating effect on a family as a whole of domestic violence.

The statistics do raise worrying trends in some regions though: In the Birmingham area alone, from an analysis of Civil Legal Aid tables carried out pre-2013 and post-2013, legal aid County Court applications founded on allegations of domestic violence have increased 200%, in Birmingham Family Proceedings Court a 775% increase, in Derby County Court a 300% increase and in Wolverhampton a staggering 1457% increase. Again the overall picture is complex with many Courts closing, the introduction of the single Family Court,  an ever decreasing number of solicitors able to offer legal aid and closure of Legal Aid Agency offices offering legal aid. There is undoubtedly an element of consolidation and centralisation which needs to be taken into account. Add in to this the sensitive issue that at one time many women would not draw such allegations to the attention of the Court because they could get funding for legal aid anyway,  but they are now perhaps left with no choice if they want legal aid for other issues but to make applications to the Court for injunctive relief.

There does however remain an underlying point that such allegations if dramatically on the increase in certain areas of the country will often have a dramatic impact upon the amount of time a dad can spend with his children following separation and the circumstances in which that time is spent.

There are always exceptions to the generality of reports and studies and parents increasingly are able to resolve disputes relating to children out of Court.  Solicitors deal daily with many cases where no applications are ever made but there is still an element of disagreement resolved in other ways.

In a rapidly changing legal landscape it is important to obtain the right legal advice about your options as a parent when your relationship breaks down. Emsleys Family Law team offers a free, no obligation initial consultation:  We do not have any contract with the Legal Aid Agency other than for the funding of Family Mediation

Gabbie  Clasper

Written by

Gabbie Clasper

Head of Family Law

Gabbie has over 20 years’ experience in family law. She has expert knowledge in complex issues including financial aspects following divorce; pre and post-nuptial agreements; cases with an international element; and civil partnerships. Gabbie is regularly instructed by clients based across the country and abroad. She...

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