A common issue that crops up time and again is whether the court should grant a ‘shared lives with order’ or a ‘live with order / spend time with order’. This article will explore that issue with reference to the High Court authority AZ v BX (Child Arrangements Order: Appeal) [2024] EWHC 1529 (Fam).
This article should be read in conjunction with Lavinia Glover’s article “Live With / Shared Care Orders” from January 2023 which discusses the background to the terminology and explains the differences between the different types of orders.
By way of background, in AZ v BX (Child Arrangements Order: Appeal), the Judge made the following findings:
- there were no safeguarding issues;
- the parents were incapable of working together;
- the parents failed to appreciate the importance of the other in the lives of the children; and
- the mother had controlled contact.
The Judge made an order that the children shall spend alternate weekends (as well as some evening contact) with the father during term-time and 50% of the school holidays (without any default position or mechanism to agree the dates).
When considering the type of order at [78], the Judge identified the issue as “whether there should be a shared care order or a lives with order with mother and time with the other parent” and referred to the issue as “label litigation”. The Judge identified issues that could be present with either type of order including:
- “the impact of a lives with order on the balance of power within a parental relationship, which might be particularly important where one parent regards themselves as being in control”;
- “the impact of an order on the stability of the children”; and
- “the possibility that the type of order made might make a difference to the “actions of either parent””.
However, the first instance Judge did not apply the aforementioned observations to the case before him and decided to order a ‘live with order’ to the mother and a ‘spend time with order’ to the father as “the reality of the lived experience of these children when looking at their welfare is that they continue to live with mother and spend time with father”, he did not state why this was better for their welfare [78].
The appeal court concluded that applying CA 1989 ss1 and 8, and the dicta from L v F [2017] EWCA Civ 2121, the following principles apply to a decision whether or not to make a ‘shared lives with order’ [77]:
- The choice is not merely a question of labelling, and it is likely to be relevant to the welfare of the subject children. The principles of CA 1989 s1 must be applied.
- A ‘shared lives with order’ will result in an unmarried father gaining parental responsibility which is a material difference to consider (although not applicable in this case).
- “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”.
- “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”.
- “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”.
- “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”.
The appeal court went on to say at [81] that “the welfare advantages for each child of a shared lives with order in the present case would be that:
- It would make it more difficult for either parent to regard themselves as being in control of contact or to seek to control contact – a problem that the Judge had specifically identified.
- In particular, it would mitigate the effects of the mother’s attempts to control contact…It would thereby put the parents on an equal footing when seeking to make arrangements for the children.
- It would also put the parents on an equal footing with regard to holidays abroad including during school holidays when the children are going to spend equal time with each parent.
- A shared lives with order would signal to each parent that each was of value in the lives of the children, something the Judge had found each parent failed to appreciate.
- It would also signal to the children that each parent has, in their capacity as parent, the same inherent importance in the children’s lives.
- It would promote a sense of stability within the family: whatever the disagreements between the parents, the court had ordered that the children shall live with both of them.”
The appeal court also made specific reference that “Until the parties’ separation the children had lived with and had been brought up by both parents…the children would be spending extensive periods of time through the year with both parents. A joint lives with order is not reserved for cases where the children’s time is divided equally between the two parents. It can be the right order to make even if the children will spend more time with one parent than with the other. It might well not be suitable if the children would spend only a very small proportion of their time with one parent, but even in such a case, a joint live with order is not automatically excluded” [82].
The appeal court was persuaded that the combination of requiring the parties to agree school holiday arrangements and a ‘live with order’ in favour of the mother resulted in the mother having greater control over the arrangements because (i) the mother can take the children abroad without the father’s consent but not vice versa and (ii) a ‘spend time with order’ only requires the mother to make the children available to spend time with the father rather than requiring them to divide the children’s time between them.
The first instance Judge failed to adequately consider:
- the welfare implications for the children for each type of order;
- the possible advantages of a ‘shared lives with order’;
- whether their interests would be better served by making a ‘shared lives with order’;
- his own findings in relation to the orders he made;
- the impact of the future arrangements on the experience of the children;
- CA 1989 s13 and its implications.
The first instance Judge was found to have been wrong not to make a ‘shared lives with order’ and did not identify any factor that a ‘shared lives with order’ should not be made. The appeal was allowed. The case was not remitted for further consideration as further delay would not be in the children’s interests and the appeal court made a ‘shared lives with order’.
The judgment should be read in full for full appreciation of the reasoning behind the judgment.
For more information about our family law team please contact clerks@becket-chambers.co.uk
