What Is the Significance of Shared Parenting and Shared Residence Orders - Essay Example

CRITICALLY ANALYZE THE LAW IN RELATION TO RESIDENCE ORDERS AND CONTACT ORDERS UNDER THE CHILDREN ACT 1989. WHAT IS THE SIGNIFICANCE OF SHARED PARENTING AND SHARED RESIDENCE ORDERS Name Institution + City Course Professor Date Submitted Critically Analyze The Law In Relation To Residence Orders And Contact Orders Under The Children Act 1989. What Is the Significance of Shared Parenting and Shared Residence Orders? English and Welsh legal regulations concerning allocation of post-separation parenting has been a controversial issue that has prompted several reports and enquiries. Recently, debates have confronted alleged deficiencies in the enforcement and facilitation of contact with nonresident parents. The feelings of deficiencies were drive by the concerns and worries by nonresident fathers who that orders by the courts on contact with their children were never enforced and were easily flouted (Grimpshaw & Sinclair 1997, 20). The Fathers’ Right Organization publicized the report as part of a campaign that attacked the courts for always ordering the custody of children upon their mothers and only considered the fathers as contact parents. The organization suggested that shared residence should be the norm. There was an insistence that automatic or presumptive equal division of the child’s time between the separated parents. In view of the issues surrounding child custody, this task critically analyzes the law in relation on contact orders and residence orders under the Children’s Act of 1989. It looks at the significance of Shared Residence and Shared Parenting orders. The task assesses whether the law on this area seeks fairness to all parties . It dissects the rationale of the legislation on whether or not it places the welfare of the child as a paramount consideration in all circumstances. Before understanding the fairness of the Children Act, it is imperative to understand the history of the legislation and comprehend the conditions that came prior to its legislation. Although the arguments in the fathers’ organization were not regarded as the main concerns of a response to their grievances, some of their worries were addressed in consultation that involved the Children Act Sub-Committee of Lord Chancellor’s Advisory Board. The committee canvassed the complaints briefly in appendix of the reports that included a short description of two decisions of Court of Appeal on shared residence orders. The government green papers took down the recommendations by the committee. The House of Commons Constitutional Affairs committee vastly agreed with the recommendations (Hagan 1996, 193). There was a conclusion that a predetermined statutory template for the sharing of the children’s time imposed on separated parents be rejected. It was argued that the standing regulations would be impractical in some cases and relegated the wishes and desires of individual children to a secondary position. Response to nonresident parents was threefold: The government decided to enhance court powers of enforcement and facilitation of contact by introduction of legislations The President of Family Division launched a novel Private Law Program to enhance court efficiency (Hagan 1996, 193) Upon reflection on the findings of the research, the government promoted an array of measures to attain its declared policy aim and promote the proportion of parents who arrange for themselves Shared Residence Order Section 8(1) of the Children Act of 1989 defines a residence order as an order settling arrangements to be made on the person on whom a child is to stay. Section 11(4) of the same Children Act further reiterates that in the event that an order is made in favor of two or more people who do not live together, the order specifies the periods for which the child is to stay and live in the concerned households (Hughes & Owen 2009, 93). An order that reflects this provision is often referred to as shared residence order. Alternatively, Split Residence Order or Joint Residence Order is some other terms that can be used interchangeably to mean the same scenario. Section 11(4) had its origin on the recommendations of the Law Commission and it explained its rationale (Hughes & Owen 2009, 93). A Shared Residence Order needs to be fair. It needs to be flexible enough to accommodate a vast range of situations. The child may live with both parents even if the parents do not share the same household in some cases. The Shared Residence Order does not intend to create a situation where the child shares his time equally between the separated or divorced parents. Such arrangements may never be practicable. In case such a situation works, it may never be for the benefit of the child, but for self-gratification of selfish gains of the competing parents. In some cases, however, especially those observed in the United States, such equal Shared Residence Order might work perfectly and there is no need to completely discourage them (Hughes & Owen 2009, 93). The child lives with both parents but spends considerably more time with one parent or the other. Most parents are never able to work out arrangements for custody of their children without involving a third party. The third parties could involve counselors, lawyers and family members. Whenever an issue concerning the welfare of a child arises, parents have no other option but to involve the courts. One way of reducing the problems that would arise from custody of the child could be the law that considers both parents of the child to have equal duties and rights and perhaps time in relation to the child. However, there are varied opinions over whether this presumption could hold. Family Justice Review of November 2011 gave recommendations against such assumptions (Grimpshaw & Sinclair 1997, 20). Shared Parenting Orders Bill of 2010-2012 presented to parliament by Member of Parliament, Brian Binley defines shared parenting in section 2(1) (Lawrence 2004, 184). It is an order providing that both parents participate fully and have full involvement in upbringing a child. The upbringing duties of the child particularly relate to the long term issues and require that the child spend a substantial amount of time with both parents. All decisions made in relation to the child need to be guided by Welfare Principle as outlined in Section 1 of the Children Act of 1989 (Hughes & Owen 2009, 93). The Welfare Principle guides the court whenever it makes any decisions with respect to administration of property belonging to the child or any income arising from the property. The welfare of the child becomes the court’s paramount consideration whenever the court makes decisions concerning the upbringing of the child. Although there is no legal definition of “welfare”, there is a helpful list provided in Section 1(3) of the Children Act of 1989. Before deciding on the terms of Shared Parenting, the court scrutinizes this list of guidelines to ensure whatever decision it takes is for the best of the child. The court has regards in particular to the physical, educational and emotional needs of the child. The court also determines the ascertainable feelings and wishes of the child concerned. This is subject to the age and current understanding of the child. Further, the court determines any harm that the child has suffered or he may be at risk of suffering. Furthermore, there is the determination of the range of powers that are available to the court under the guiding act in the court proceedings in question. Additionally, the court looks into the likely effects that the child may have in relation to the change of environment that results from the shared parenting (Lawrence 2004, 184). In addition, the jury determines the age of the child, background and his sex. It dissects and critically analyses any special characteristics the child may have that may be relevant in determination of the shared parenting. Finally, the court assesses the capability of the parents of the child. It considers the financial capability of each of the parents and assesses any other persons it may feel is relevant in the provision of the child’s needs. Along with “No Delay” and “No Order” provisions, these principles should be at the forefront of all decisions that the courts make (Great Britain 1991, 53). They provide the guidelines for that which is popular as the issues in the best interest of the child. In addition to providing these imperative guidelines, CA 1989 provides parental responsibilities that must be adhered to in deciding Shared Parenting. Section 3 of the Children Act 1989 define Parental Responsibility as all the powers, rights, responsibilities, duties and authority that the parent of a child has by law in relation to the child and his property. Disputes related to parental responsibilities have often occurred in a number of situations (Great Britain 1991, 33). For instance, such disputes could arise from the need to change the name of the child, establishment of the religion that the child should practice, the schools to attend and parental consent to particular medical procedures. Common law that arises from the case of Hewer v Bryant of 1969 defines parental responsibility as a bundle of rights or a bundle of powers (Lawrence 2004, 184). The bundle of powers and rights include the powers to control education of the child, the choice of the child’s religion, and administering the property of the child. In addition, the bundles of powers include the entitlement to sanction the issues of a passport as well as of withholding consent to marriage of the child. There is also inclusion of the personal powers to physically control the child from infancy to the years of discretion. There is also the right to apply to the courts to exercise the authority of the Crown as perens patriae McLeod 2008, 21). As opposed to some long-term decisions, everyday issues concerning children living with separate parents do not necessarily require obtaining of consent from all parentally responsible persons. The situation becomes different when considering long-term decisions considered in the previous paragraph. Whereas normal issues such as decision on what shoes or clothes the child should wear may not cause severe disputes, the small bits of a child’s life and daily nature shape the character of the child in the long-run. Parents could resolve the little differences through discussions. In the end, there is need to understand that there are often different sets of rules in different households. Having the welfare principle in mind and assuming that both parents hold onto their parental responsibilities, it is sensible to argue that there is the possibility of having a successful Shared Parenting. However, this may not be as simple as envisioned. Shared Parenting would potentially lead to misuse and improper levels of interference of a child’s time by both parents. Core decisions o crucial long term issues affecting the welfare of the child are different. Having a successful Shared Parenting often goes outside the decisions of the court (Great Britain 1991, 23). It would require the initiative of both parents to draw a line between major long-term issues and minor short-term issues that can potentially affect the child’s development. Full involvement of both parents in Shared Parenting Orders is close to impossible. There is the need to change the legislation from the provisions of Children Act 1989 McLeod 2008, 21). The concept of Parental Responsibility seems to exist more as a legal concept than it is applicable in the real world. The practical perception is that one of the parents assumes the primary role of upbringing the child while the other parent assumes secondary significance in the life of the child. Vocabularies that have developed to describe parents based on their role in the development and upbringing of the child include “Absent Parent” for the secondary significant parent and the “Primary Carer” for the fundamental caregiver and taker of responsibilities McLeod 2008, 21). Upon considering the terms and conditions of shared parenting, the court determines the time that is allocated to each of the parents. Currently, residence and contact orders provide a guideline for the times each parent is allotted to spend with their children after separation. According to Section 8 of Children Act 1989, a Residence Order refers to an order that settles the arrangements to be made to determine the person with whom the child lives. On the other hand, a Contact Order refers to the order requiring a person with whom a child lives or is intended to live with to allow the child to pay visits to the other person that is named in the order (Great Britain 1991, 59). This implies the circumstances under which the other person named in the order to have contact with the child. These definitions as provided in the legislature are weak and breaks down an invisible boundary as time spent with nonresident parent or absent parent increases. It remains a topic of discussion whether the legal introduction of the concepts have hindered or helped separated parents and their children since they were conceived (O’Hagan 1996, 39). Contact and resident orders are vastly contentious. Parents with resident orders are the main day-to-day caregivers to their children. Those with contact orders are the people that the children see only when it is possible and necessary. Readdressing the failures and balance in practice in the concept of Parental Responsibility brings to fashion the concept of Shared Residence Orders (SRO). According to Section 11(4) of Children Act 1989, in the event that residence orders are made in the favor of two or more people that do not reside together, the order specifies the times and durations which the child lives in the different concerned households. There is need to have a look at a case law in order to understand the situations that prompt Shared Residence Order. Traditionally, Shared Residence Order was never common prior to the legislation of the Children Act 1989. There were beliefs and strong convictions that a settled home with one of the separated parents was the in the best interest of the child. This was as evident in the Riley v Riley case of 1986 (Department of Law 1990, 198). In 1987, a Shared Residence Order was used to confer Parental Responsibility to a non-biological father due to the fact that the father wanted to treat the child as his own, and this would not be possible in the absence of a Shared Residence Order (O’Hagan 1996, 39). Clearly in this case, the decision by the court to rule in favor of Shared Residence Order for the non-biological father was in the paramount interest of the child. The child ought to have the comfort and security of living with the idea that he has a father figure. The A v A case emphasized on the importance that parenting is a shared responsibility. This historical order was of crucial practical therapeutic importance. However, it is worthy to note that had Parental Responsibility not been an issue in the case law, then there would be limited chances that a Shared Residence Order would have been made in favor of the non-biological father (O’Hagan 1996, 39). A more retelling dynamic approach in Shared Residence Order was observed in D v D [2001] FLR 495 (Department of Law 1990, 198). In this case, the court issued a Shared Residence Order in order to reflect on the reality of the child’s life. The court thought out of the thought-frameworks of Exceptional Circumstances and Positive Benefits to consider the best interest of the child and the welfare principle. It involved a high degree of animosity, but the order was made despite this to provide guidance on where the child would spend most of his time. Over the years following the inception of Children Act of 1989, the concept of Shared Residence Order has developed to include situations that remain to be desired whether or not they are of the best interest of the child. In cases where parents live significant distances apart, the distance does not prevent the Shared Residence Order from being made. The time does not need to be equal between the concerned households if the homes offer equal importance and status (Ryan 1999, 73). In the event that parents were not capable of working in harmony, Shared Residence Order reflected the reality of the child’s life. In this case, the court would want to make the parents realize that they are equal in the eyes of the law. It would make them realize that they bear equal responsibilities and duties in the upbringing and taking care of the child. Therefore, the court would rule in favor of Shared Residence Order to avoid misinterpretations of favored control by one parent in the absence of such an order (A v A [2004] 1FLR 195) (Department of Law 1990, 198). Another scenario that developed with time included listening to the need of the child. In cases where children wanted a continuation of shared arrangements an there was no need for pleasant-sounding relationship as a prerequisite for a SRO, Shared Residence Order was granted (Department of Law 1990, 18). Further, Shared Residence Order was granted in cases where making of the order would reflect the reality that the parents had established. Shared Residence Order did not automatically follow equivalent time proportions. Developments I the concept included a decision that the shared residence would follow on the daily routines the child lived with the parents before the separation. Day-to-day decisions on where the child ought to be would be pegged on whomever the child was accustomed to being with at that particular time. Other crucial decisions on the needed changes would be done jointly between the parents. It is noteworthy to remember that as the parents decide on these crucial basics, the law gives them equal responsibilities and duties. Consideration of equality was the other issue that developed in the concept of shared residence orders. It became paramount with time to consider the desires and wishes of the child in cases where equality was thought to be of significance in determining Shared Residence Order (Dalrymple &Burke 2006, 29). More emphases were laid on the need to rule in favor of SRO as the concept became more psychologically beneficial to both the parents and the children. Emphases on the equality of the parents on the wellbeing of their child make them productive and enthusiastic to carry on with life, a fact that translates into development of the child. SRO have been used to avoid the psychological baggage of power, control and rights attached to sole residence orders. Presently, SROs are considered the rule rather than the exception (Dalrymple &Burke 2006, 24). According to Family Justice Review, there should be no introduction of legislation that creates or risks creating a notion that there is a parental right to considerably shared or equivalent time for both parents. The review failed to recommend the presumption due to the need of a framework that would consider that a child spends meaningful time with parents. The report, therefore, recommended that the government should find the means of strengthening the significance of good comprehension of parental responsibilities in the information it conveys to parents (Ryan 1999, 73). In reaction to the report, the government fully agreed with the conclusions and recommendations of the review. Children benefit from both parents when they are fully involved in their upbringing. Shared parenting needs only to be discouraged when there are welfare and safety concerns. There is need for a legislative statement on the significance of a child having a continued relationship with both parents after the family separates. Whether the court decides on contact order, residence order or shared parenting order, there are a number of benefits and drawbacks for any of the approaches to both the child and his parents (Dalrymple &Burke 2006, 99). Shared parenting enables the child to freely enjoy the nurture and love of both parents and the wider family even after separation. Even though contact order does not provide one of the parents with enough time to enjoy being with a child, the child still gets to spend little, quality times with their parents. Shared residence means that the child spends sufficient time with each parent for him to view each of his parents as a mother or a father rather than as an uncle or an aunt. Shared parenting enables children to retain the love and care for both their grandparents and parents. It gives the fathers equal rights on their children as they are expected to show equal responsibilities (Cooper & Plotnikoff 2006, 41). According to Fathers 4 Justice, the society should not expect children to grow up as well-adjusted adults while treating them [fathers] as strangers in the upbringing of their own children after separation. Shared parenting ensures that the much-needed fatherly care is obtained to make children grow in an all-round manner. According to Families Need Fathers, shared parenting bears many benefits to an all-round development of the whole family and society in general. It states that shared parenting leads to meaningful relationships (Cooper & Plotnikoff 2006, 31). Every child has the right to meaningful relationship with his parents. Meaningful relationship is not necessarily about the lengths of time that one spends with a child. On the contrary, involvement of a parent ensures that the child develops educationally, physically and emotionally upright. In this case, shared residence and contact orders become important in ensuring the child grows normally. Growth and development of the child does not rely on the equal sharing of time that parents spend with their child. That which matters most is the fact that the parents are fully involved in their child’s life. Full involvement would include contribution to education of the child, his leisure as well as routine time and healthcare (Cooper & Plotnikoff 2006, 48). On the other hand, the Law Society believes that shared parenting has adverse negative impacts on the development of a child (Broad 1998, 92). It reiterates that the presumptions made in shared parenting risk subordinating the child’s best interest to expectations of equal rights of the parents. This causes a situation that could be detrimental to the development of the child as he may always be swinging between the demands of the conflicting and competing parents. In addition, Women’s Aid feels that there is no need to insert into law the need for shared parenting (Sinclair 1997, 84). The body does not give any reason for its objection to the insertion other than a strong feeling that it could have been the wrong move. The body agrees with the notion that all children deserve the right for meaningful relationships with all their parents, but only when it is safe and in the best fundamental interest of the child. It argues that having shared parenting into law is redundant as the current legislation already provides for shared parenting where it is safe. In a vast majority of cases, children from separated families benefit from superior quality relationships with both of their parents upon separation. However, Gingerbread believes that the courts have the responsibility of retaining the principle of making decisions based on what is right for the child in every case. Any move to alter the legislation would lead to confusions and more risks rather than less litigations (Allen 2005, 43). Despite the oppositions to shared parenting, shared residence and contact orders, there is sufficient proof to claim that all the legislative orders are in the best interest of the child. From the discussion, the developments that have stemmed from these legislations since the introduction of Children Act of 1989 show that the emphases have always been on the best interest of the child. Although the duties and responsibilities of the parents are crucial in the good upbringing of the child, legislations and court orders have often considered the rights of the child before the adults. It is sensible to conclude that the pieces of legislation discussed are in the best interest of the child considering the issues that are considered in placing judgment on cases of child custody. In Children Act 1989, any decisions about the child place the child’s welfare as the paramount consideration. The court considers the welfare of the child above everything else. Consideration of the following factors is an obvious proof that, indeed, the legislations are for the best interest of the child; The child’s wishes and feelings depending on his age and understanding, and the child’s physical, educational and emotional needs. Further, the court determines any harm that the child has suffered or he may be at risk of suffering. Furthermore, there is the determination of the range of powers that are available to the court under the guiding act of the proceedings in question (Allen 2005, 53). Additionally, the court looks into the likely effects that the child may have in relation to the change of environment that results from the shared parenting. In addition, the jury determines the age of the child, background and his sex. It dissects and critically analyses any special characteristics the child may have that may be relevant in determination of the shared parenting. Finally, the court assesses the capability of the parents of the child. It considers the financial capability of each of the parents and assesses any other persons it may feel is relevant in the provision of the child’s needs (Sinclair 1997, 84). Given the provisions of Parental Responsibilities, all parents and applicants in the child custody case have equal rights. There is fairness in shared parenting, shared residence and contact orders. List of References ALLEN, N. (2005). Making Sense of the Children Act And Related Legislation for the Social and Welfare Services. Chichester, John Wiley & Sons. http://public.eblib.com/EBLPublic/PublicView.do?ptiID=239001. BROAD, B. (1998). Young people leaving care: life after the Children Act 1989. London [u.a.], Kingsley. COOPER, P., & PLOTNIKOFF, J. (2006). Reporting to court under the Children Act: a handbook for social services. London, TSO. DALRYMPLE, J., & BURKE, B. (2006). Anti-oppressive practice: social care and the law. Maidenhead, Open University Press. DEPARTMENT OF LAW. (1990). An introduction to The Children Act 1989: a new framework for the care and upbringing of children. London, H.M.S.O. GREAT BRITAIN. (1991). The Children Act 1989: guidance and regulations. Vol.8, Private fostering and miscellaneous. London, H.M.S.O. GREAT BRITAIN. (1991). The Children Act 1989: guidance and regulations. London, H.M.S.O. GREAT BRITAIN. (1991). Working together under the Children Act 1989: a guide to the arrangements for inter-agency co-operation for the protection of children from abuse. London, H.M.S.O. GRIMSHAW, R., & SINCLAIR, R. (1997). Planning to care: regulation, procedure, and practice under the Children Act, 1989. London, National Childrens Bureau. HAGAN, K. (1996). Social work competences in practice. Bristol, PA, Jessica Kingsley Publishers. HUGHES, L., & OWEN, H. (2009). Good practice in safeguarding children working effectively in child protection. London, Jessica Kingsley Publishers. http://public.eblib.com/EBLPublic/PublicView.do?ptiID=435582. LAWRENCE, A. (2004). Principles of child protection management and practice. Maidenhead, Open University Press. http://search.ebscohost.com/login.aspx?direct=true&scope=site&db=nlebk&db=nlabk&AN=233998. MCLEOD, A. (2008). Listening to children a practitioners guide. London, Jessica Kingsley Publishers. http://public.eblib.com/EBLPublic/PublicView.do?ptiID=350351. OHAGAN, K. (1996). Social work competences in practice. Bristol, PA, Jessica Kingsley Publishers. RYAN, M. (1999). The Children Act 1989: putting it into practice. Aldershot, Hants, England, Ashgate. SINCLAIR, R. (1997). Planning to care: regulation, procedure, and practice under the Children Act, 1989. London, National Childrens Bureau. Read More