This article discusses the differences between a “Live with”/ “Shared Care Orders” to dispel to the myth that either Order gives a parent a greater level of responsibility. It is hoped that by addressing the rudimentary points, it will help to re-focus a parent’s mind on what the real issues of importance are in Children Act proceedings.
The breakdown of a relationship creates many difficulties particularly when children are involved, inevitably a relationship breakdown will require one parent to leave the family home. Up to the point of separation this parent has often lived with their child and is now faced with agreeing arrangements for child contact whilst establishing their own family home. One of the most common concepts I am asked about is a “live with/ live with” or shared care order.
Legislation
From 22nd April 2014, The Children and Families Act 2014 introduced a number of significant changes including “Child Arrangements Orders” to replace orders for contact and residence orders. The aim was to encourage parents to adopt a less rigid and confrontational position regarding child arrangements. There was a need to stop the culture of a perceived winner and loser.
Section 8 of the Children Act 1989 states that a Child Arrangements Order specifies “with whom a child is to live, spend time or otherwise have contact, and … when a child is to live, spend time or otherwise have contact with any person”.
Legal presumption
There is a wrongful assumption that parents have a ‘right’ to a 50/50 split of time with their child. It must be noted that there is no legal presumption of the equal sharing of time between each parent. Section 1 of the Children Act 1989 includes a presumption that parental involvement in a child’s life will further the child’s welfare unless there is evidence to suggest that the involvement of that parent would put the child at risk of suffering harm.
The intention of this presumption was to create a balance between parents. To ensure that a party could not exclude their ex-partner from their child’s life, and to emphasise that both parents have equal status.
Legal Rights
In reality if both parents have parental responsibility a “live with” order gives very few additional rights. However, it gives the ability to a parent to take their child of the country on holiday for up to 28 days at a time without having to seek the consent of any other party (noting that if a ‘spend time with’ order in place, this order will still need to be complied with regardless).
For clarity’s sake, a ‘lives with’ child arrangements order does not reduce any of the rights that a parent has by virtue of having parental responsibility. Even if one parent has a “lives with” order, it does not give them the right, for example, to decide the child’s school, relocate out of the country without consent or to change the child’s name without permission. The reality is that even with this order a parent must still include any person with parental responsibility for a child in such decisions. They have a right to be consulted and involved in all important decisions for that child. Having a ‘lives with’ order does not give one parent a superior status.
Conclusion
An order for shared living arrangements does not require an equal division of time. The Court will first consider the optimum division of the child’s time before considering how that time should be expressed within an order. It is often argued that an order to reflect shared living arrangements is not a welfare decision. It is important to note that it is not strictly necessary to show a positive benefit to the child by granting this order. There is a requirement to show that the order is in the interests of the child. There is no need for the parents to have a good co-parenting relationship before the Court considers granting the order.
There have been numerous examples within case law to demonstrate the psychological benefits of an order reflecting “live with Mother and live with Father”. It is a way of ensuring that a parent cannot marginalise the role another plays. Often in cases of extreme parental acrimony an order reflecting that the child lives with both parents can signify that the parents are equal in the eyes of the law with equal responsibilities and duties. For most parents the importance of a shared live with order, is the recognition that the child has two homes which are equal.
