Shared Custody: A Comparative Study of the Position in Spain and England
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Fri Jun 22, 2012 3:05 pm (PDT)
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The
below is transcribed from AndrinaHayden (January 2011)
Shared Custody: A Comparative Study of the Position in Spain and England. School
of Law Universitat Pompeu Fabra, Barcelona. pp.16-22
http://www.indret.com/pdf/795_en.pdf 4. The English
position – Shared residence orders
4.1. Background
to the law
The English
position in relation to shared custody provides an interesting comparison to
that of the Spanish position as, as LOWE has recognized, despite having started
from the same type of scepticism, the courts now take a very different approach
(LOWE, 2009 p. 2).
By way of
background to the English position in relation to shared custody, or shared
residence as it is termed in the UK, it is important to understand the
transforming effect of the Children Act 1989 and the historical approach of the
courts before the implementation of the Act. Before the enactment of the CA
1989, the Law Commission identified a number of problems which needed
rectifying. First, the law itself was considered to be “bedevilled by
complications and duplications”6 to such an extent that it was unintelligible
in its effects on parental rights and duties. Secondly, there was a tendency
amongst parents, their lawyers and the courts respectively to seek and make
orders as a matter of course where there was an application on a child’s
upbringing, thus leading to litigation and conflict. Thirdly, there was wide
variation in individual judges’ views about the legal effect and use of custody
and joint custody orders, with some judges making extensive use of joint
custody orders while others rarely if ever made them (HARRIS and GEORGE, 2010,
p. 169).
In seeking to
remedy the above problems the Law Commission adopted the “fundamental principle
(...) that the primary responsibility for the upbringing of children rests with
their parents” and that the state, including the courts, “should intervene only
where the child is placed at unacceptable risk”7. With this in mind, the
legislators created the CA 1989 which introduced the concept of parental
responsibility for the first time. The CA 1989 provided that those with
parental responsibility could exercise it without the agreement of anyone else,
and that the courts should interfere only when it could be positively shown
that an order about some concrete issue would benefit the child more than no
order at all (HARRIS and GEORGE, 2010, p. 170).
The CA 1989 also
introduced the concept of residence orders being one of the new court
orders under Section 8 which were intended to “concentrate the minds of the
parties and of the court on the concrete issues relating to the day-to-day care
of the child”8. Under Section 8 (1) of the 1989 Act a residence order “(...)
means an order settling the arrangements to be made as to the person with whom
the child is to live”.
The relevant
provision dealing with shared residence orders is Section 11 (4) which
provides:
“Where a residence order is made in favour of two or more
persons who do not themselves all live together, the order may specify the
periods during which the child is to live in the different households
concerned.”
Therefore
although CA 1989 does not make express reference to shared residence orders,
because of the general presumption under the Interpretation Act 1978 (c.30)
that words appearing in a statute in the singular include the plural and the
implication of Section 11 (4), clear provision is made to provide for a child
to live with both parents even though they do not share the same household
(LOWE, 2009, p. 4).
Shared residence
orders can vary from one end of the spectrum where the child spends half their
time with each parent, to the other end of the spectrum where the child spends
weekdays with one parent and weekends with the other or term time with one
parent and school holidays with the other, this being the more common
situation. Rather than having to reflect these arrangements by making a
residence order in favour of one parent and contact in favour of the other, the
Law Commission believed that “it would be a far more realistic description of
the responsibilities involved (…) to make a residence order covering both
parents”9.
However, whilst
there can be no doubt that the Law Commission had intended to permit the making
of shared residence orders, in so doing, they were not advocating that children
should share their time between their parents, (an arrangement which they
thought would rarely be practical for the child’s benefit), but they were
recommending the reversal of a pre-children Act decision Riley v Riley,
which held that courts could not as a matter of principle make what is now
known as a shared residence order.
Therefore, at the
time the Children Act first came in into force it was contemplated that there
could be shared residence orders, but as the Department of Health’s Guidance
and Regulations stated they were not expected to become a common form of order
“because most children still need the stability of a single home, and partly
because in the cases where shared care is appropriate there is less likely to
be a need for the court to make any order at all”10.
Given the
negative tone of these passages it is unsurprising that authorities shortly
after the coming into force of the legislation revealed an unwillingness to
make shared residence orders. However, as case law has evolved in the English
courts, it appears to be the case that the shared residence order has
transformed from a rare species to a ‘must have’, particularly for the
non-resident parent and irrespective of whether the children’s time is divided
equally between the homes (HALE and WOOD, 2007, p. 11).
4.2. The
developing case law
Indeed as DOUGLAS
and LOWE have acknowledged the English courts’ approach to making shared
residence orders has been an evolving one (LOWE and DOUGLAS, 2007, p. 517). The
early case law following the implementation of the Act suggested that such
orders should only be made in exceptional circumstances. In Re H (A Minor)
(Shared Residence Order), the unmarried parents of a 14 year old boy had
never spent any appreciable time together under the same roof. But the boy had
been looked after by both of his parents until the mother stopped contact
between the boy and his father. A shared residence order was refused, it being
held that the “establishment, of two competing homes only leads to confusion
and stress and would be contrary to the paramount concept of the welfare of the
child himself”.
Later, in A v
A (Minors) (Shared Residence Order), in upholding an order dividing equally
the time the children were to live with each parent outside of school term,
BUTLER-SLOSS LJ considered that it had to be demonstrated that there was a
positive benefit to make what she referred to as “an unusual order”. This
perhaps marked a gradual change in approach away from the expression exceptional
circumstances (EVANS, 2010, p. 7).
Nevertheless, it
took nearly 10 years after the enactment of the CA 1989 for a decisive change
in attitude towards shared residence orders to take place. This change in attitude
was made abundantly clear by HALE LJ in the case of D v D (Shared Residence
Order) in which she stated that she “would not add any gloss on the
legislative provisions, which are always subject to the paramount consideration
of what is best for the children.”
Thus, D v D marked
the beginning of a departure from the old, more restrictive approach (HALE and
WOOD, 2007, p. 11). From then on it was no longer necessary to show that
exceptional circumstances or unusual circumstances existed, nor that a positive
benefit could be identified before a shared residence order could be granted
(HALE and WOOD, 2007, p. 10). The change in attitude towards shared residence
orders made it clear that shared residence orders are no different to other
types of orders and the sole test provided by the CA 1989 is the paramountcy of
the child’s welfare as required under Section 1 of the CA.
Despite the clear
statement in D v D there have been further attempts to limit the making
of shared residence orders. Indeed in Re W (Shared Residence Order) it
was argued that unless the time spent in each household is to be roughly equal,
shared residence orders should only be made in unusual circumstances.
However, WILSON LJ helpfully clarified the position. Citing paragraphs [31]-[32]
of HALE LJ’s judgment in D v D, his Lordship commented:
“[…] for the last
8 years the better view has been that, whilst of course a need remains for the
demonstration of circumstances which positively indicate that the child’s
welfare would thereby be served, there is no such gloss on the appropriateness
of an order for shared residence as would be reflected by the words unusual or
indeed exceptional”.
Apart from
clarifying the application of the paramountcy principle, it should be noted
that D v D also demonstrates the readiness of the English courts to make
shared residence orders even where the parents are in conflict. In the case
itself the Court of Appeal upheld a decision to make a shared residence order
where the children were in effect living with both parents, having homes with
each of them and were coping well with the arrangements. The parents on the
other hand were in conflict over these arrangements and had frequently resorted
to court proceedings. The hope was that the shared residence order would reduce
the conflict between the parents. According to LOWE this probably goes beyond
what the CEFL had in mind in Principle 3.20 (2) (b) (LOWE, 2009, p.6).
Nevertheless,
both D v D (Shared Residence Order) and A v A (Shared Residence) establish
that a harmonious relationship between the parents is not, as it was once
considered to be, a prerequisite to making a shared residence order11. In A v A the children were happily spending half of their time with each parent
but the adults themselves were incapable of working in harmony. In Wall J’s
view this was a prime case for a shared residence order as it reflected the
reality of the children’s lives who were already dividing their time equally
between their parents (A v A (Shared Residence).
The Court of
Appeal in Re P (Children) allowed the father’s appeal against the
refusal of the trial judge to make a shared residence order where the child was
spending roughly equal time with each parent. In overturning the judge’s
decision Wall LJ stated that:
“Where a child in
M’s position lives for nearly 50% of the time with her father, it seems to me
[...] firstly that a shared residence order is most apt to describe what is
actually happening on the ground; and secondly that good reasons are required
if a shared residence order is not to be made.”
Interestingly,
despite the observations made by the HM Government in the Green Paper, Parental
Separation: Children´s Needs and Parents Responsibilities (p.16, § 13), which
preceded the Children and Adoption Act, a presumption of shared residence was
specifically ruled out (HALE and WOOD, 2007, p. 13). However, on 13.7.2010 a
Private Member's Bill on shared parenting was presented to the House of
Commons. The purpose of the Bill is to provide for the making of shared
parenting orders following separation or divorce and to create a legal
presumption that such orders enhance the welfare of the child unless certain
exceptions apply. It would also provide appropriate safeguards for cases where
shared parenting is not the best solution.12 The Bill received its formal first
reading on the 13.7.2010 and will not be debated until 17.6.2011. It therefore
remains to be seen how the proposed shared parenting legislation might affect
shared residence in England and Wales.
Nevertheless, it
appears that even without a legislative presumption of shared residence or even
shared parenting at this stage the English Courts of their own volition appear
to be finding creative ways in order to ensure that the most likely outcome of a
residence application in the majority of cases will be a shared residence
order, absent of a very good reason why not, although the equal division of
time between two homes remains a rarity.
A good example of
the courts creative approach is demonstrated in Re F (Shared Residence
Order). In this case the mother worked part-time and the father had
resigned from the navy before trial, meaning that his plans were fluid. The
mother proposed to relocate to Edinburgh, Scotland from the South of England,
the father considering that if she were to do so, he may also relocate to
facilitate the sharing arrangements. The trial judge made a shared residence
order, acknowledging the Mother’s freedom to move to Edinburgh and laying down
a flexible pattern of contact which provided for a number of alternative future
developments each of which would enable care to continue to be shared even if
the mother relocated and the father did not.
Thus a shared
residence order is not reserved only for circumstances in which the children
will be spending their time equally nor does it appear to be the case that the
English courts are particularly constrained by the CEFL Principle 3.20 (2) (c)
which recommends that the distance between the residences of the holders of the
parental responsibilities and to the Child’s School should be taken into
account by the authorities when considering alternating residence. The
key message is that a shared residence order must reflect the underlying
reality of the children’s lives.
An example of where
a shared residence order would be inappropriate was illustrated in the case of Re
A (children) (shared residence), which concerned three children, two girls
who lived with their mother and a boy who lived with his father. The boy was
unwilling to see his mother and was not doing so and there was also some
uncertainty about one of the girls’ contact with her father. HALE LJ emphasized
that since a residence order was about with whom a child is to live it was
difficult to make a shared residence order ‘about a child who is not only not
living with one of the parents but is for the foreseeable future, unlikely even
to visit that parent’. This decision reflects the CEFL Principle 3.20 (2) (a)
under which the competent authority should take the child’s age and opinion
into account (LOWE, 2009, p.
.
A further
instance in which a shared residence order would not be considered appropriate
is when a parent has an improper motivation for wanting an order [see Re K
(Shared Residence Order)] 13. Furthermore, in some cases the behaviour of a
parent during an existing arrangement may make an order impossible. In Re M
(Children) (Residence Order), for example, an order was made unworkable by
the father’s domestic violence, rigidity and failure to co-operate over arrangements
for the children, and his manipulation of the children by involving them in
inappropriate discussions (GILMORE, 2010, p. 291).
CEFL’s
perception that alternating residence is an emerging arrangement between
parents that ought to be sanctioned by the courts is very much reflected by the
English position in the context of what is known as shared residence orders.
Having considered the developing case law it is evident that English law has
moved from a position of scepticism to a much greater willingness to make such
orders even to the extent of making such orders in the face of conflict between
the parents or where parents are living far apart.
5. Comparative Analysis Having considered
both the English and Spanish positions separately in relation to shared custody
some interesting comparative observations can be made. Firstly, it is evident
that initially both countries were sceptical about shared custody arrangements
and based their concern on the premise that such arrangements undermine
children’s key need for a stable home. Thus, historically both countries had
traditionally awarded custody to one parent, usually the mother, with a regime
of contact or visiting rights to the non-resident parent.
Nevertheless,
social changes and a greater recognition being placed on the importance of a
child’s continuing contact with both parents led to a rising trend in the
concept of ‘alternating residence’ in Europe. Following this trend, both
countries set about implementing extensive reforms with the intention of
clarifying the legal position in relation to shared custody. In England, the CA
198 intended to deal with the lack of uniformity between the courts in the use
made of joint custody orders that varied widely from one court to the next, whereas in
Spain, the 15/2005 Act introduced the notion of shared custody into the Spanish
legal system for the first time. In both jurisdictions reference is now made to
shared physical custody of a child with both of their parents, either
explicitly as in Article 92.5 CC or implicitly under Section 11 (4) CA 1989.
