Resisting the march towards 50/50 shared residence: rights, welfare and equality in post-separation families

Abstract

In recent years, a normative model of equal shared parenting post-separation has become firmly entrenched in the minds of some policy makers and legal practitioners. This has been due, in no small part, to the high-profile campaign of fathers' rights groups. In attacking what they perceive as the gender bias inherent within the family justice system, fathers' rights groups have argued vociferously for a presumption in favour of shared residence post-separation, with the child's time being split on a roughly equal 50/50 basis between the mother and the father unless the child's welfare dictates otherwise. Although the Labour government resisted calls to introduce such a presumption into the Children Act 1989, the recent case law of the Court of Appeal on the use of shared residence orders risks pushing us towards a position in which 50/50 shared residence will indeed become entrenched as the normative model for organizing post-separation family life. This article warns strongly against any such shift in post-separation parenting, arguing that greater use of 50/50 shared residence is neither supported by the empirical evidence on children's welfare nor by the vociferous rights-based arguments of disaffected fathers for equality, justice and fairness in determining post-separation parenting arrangements.

Keywords:

• shared
• residence
• divorce
• children
• welfare
• equality

Acknowledgements

I would like to acknowledge and thank the British Academy for providing financial support for a project on equal parenting and shared residence of which this article forms part (SG-54092). I would also like to thank the anonymous referees for their extremely helpful comments. An earlier version of this paper was first presented at the Annual Family Law Seminar, Staffordshire University, 24 April 2010.

Notes

 1. The term 50/50 shared residence will be used to describe a situation where the child spends roughly equal time with each parent, although the division of time may in fact be something closer to 40/60. The line between equal shared residence on one hand and residence with substantial contact on the other is of course somewhat arbitrary.

 2. For a summary of international trends see Gilmore (2010, p. 22).

 3. Between 52% and 65% (numbers differ depending on whether it is resident or non-resident parents reporting) of children have some form of staying contact with their non-resident parent, with around 44% of children seeing their non-resident parent at least weekly. However, around 30% of children never see their non-resident parent (Peacey and Hunt 2008, p. 18).

 4. The then Conservative Opposition's similarly strong concern about father absence was clear from the debates preceding the Children and Adoption Act 2006. See Hansard (HL), Vol. 673, Part No. 24, 29 June 2005, col. 257 (per Baroness Morris); Hansard (HL), Vol. 673, Part No. 24, 29 June 2005: Col. 283 (per Earl Howe); Hansard (HL), Vol. 43, Part No. 116, 2 March 2006: Col. 435 (per Tim Loughton).

 5. This concern with the importance of ‘father presence’ is also strongly evident in the recent reforms to the birth registration system. See DfCSF and DWP (2008).

 6. Section 11(4) of the CA 1989 provides for such orders. See Re H (A Minor) (Shared Residence) [1994] 1 FLR 717; A v. A (Children: Shared Residence Order) [1994] 1 FLR 669. For more detailed analysis of the early case law see Gilmore (2006a), and Harris and George (2010).

 7. Re H (A Minor) (Shared Residence) [1994] 1 FLR 717, 726; A v. A (Minors) (Shared Residence Order) [1994] 1 FLR 669, 677.

 8. Re D (Children) (Shared Residence Orders) [2001] 1 FCR 147.

 9. Ibid., [32].

10. Ibid., [31–32] (per Hale LJ); [39] (per Butler-Sloss P). See Re W (A child) [2009] EWCA Civ 370, [13] (per Wilson LJ).

11. [2009] UKHL 7.

12. For further discussion of the original intentions behind the legislative scheme including the Law Commission's position on shared residence, see Harris and George (2010) (forthcoming).

13. Re D (Children) (Shared Residence Orders) [2001] 1 FCR 147, [22].

14. [2009] UKHL 7.

15. This was the intention of both the Law Commission and the Government of the day. See Harris and George (2010) (forthcoming).

16. Re D (Children) (Shared Residence Orders) [2001] 1 FCR 147, [32]–[34].

17. Ibid., [24].

18. Re A (Children) (Shared Residence) (2001) EWCA Civ 1795, [17].

19. Ibid., [17]. See also Re A (Children) (Shared Residence) [2002] EWCA Civ 1343, [16] where Thorpe LJ similarly holds that the most weighty consideration in such cases is which order ‘duly reflected the realities’. For further commentary see Harris and George (2010) (forthcoming).

20. Holmes-Moorhouse v. Richmond upon Thames [2009] UKHL 7, [36].

21. A v. A (Children) (Shared Residence) [2004] EWHC 142 (Fam) [24]; Re R (Children) [2005] EWCA Civ 542, [11]. Cf Re B (a child) (permission to remove from the jurisdiction) [2006] EWHC 1783 (Fam), [173].

22. Re F (Children) [2003] EWCA Civ 592, [21] (per Thorpe LJ).

23. Ibid., [34] (per Wilson J).

24. [2003] EWCA Civ 592.

25. Ibid., [32].

26. Ibid., [35].

27. For further analysis see Harris and George (2010) (forthcoming).

28. [2004] EWHC 142 (Fam).

29. Ibid., [124] and [126].

30. [2008] EWCA Civ 526, [6].

31. Ibid., [21].

32. [2008] FCR 107.

33. Ibid., [66].

34. [2009] EWCA Civ 370.

35. [2009] EWCA Civ 1266.

36. [2009] EWCA Civ 370, [17].

37. [2009] EWCA Civ 1266, [12].

38. [2009] EWCA Civ 902, [13].

39. For the limited legal consequences of making a shared residence order rather than an order for residence and an order for contact (see Gilmore 2006a).

40. There has, for example, been an increase in orders for 50/50 shared residence in Australia following the implementation of the shared parenting reforms in 1995. See Rhoades et al. (2000, 1.27).

41. Cases litigated before the courts and in which a welfare report was deemed necessary.

42. See also the results of Abarbanel's small-scale study in the US reported by Gilmore (2006b), 353. See also Rhoades et al. (2000), [4.86].

43. The Swedish study of alternating residence found a similar reluctance among children to raise their dislike of the shared residence regime out of fear that they would upset or offend one of the parents (Sweden National Board of Health and Welfare 2004, pp. 8, 29.

44. Lewis cites broadly similar figures for women's labour market participation: Lewis (2002a, p. 53). Almost a quarter of women with children under 10 work less than 15 hours per week. Of all female employees, 23.7% work less than 20 hours per week.

45. See also: Dermott (2008, p. 109); Lewis and Campbell (2007, p. 375).

46. These figures are, however, lower than those cited by other commentators. Lewis and Campbell report that, by 2005, 93% of new fathers took some leave, mostly in the form of statutory paternity leave, around the birth of the child (Lewis and Campbell 2007, p. 373). Dermott similarly reports that around 93% of employed men took paternity leave in 2005 (Dermott 2008, p. 104). The number of men taking parental leave remains very low. In 2005, only 8% of men took any of their parental leave entitlement (Dermott 2008, p. 107).

47. See also Dermott (2008, pp. 108–109).

48. Almost 40% of people in the UK believe that a pre-school child is likely to suffer if his or her mother works.