[Solved] Shared Residency

Hi FM

It's good to hear of cases where the parents are able to come to an amicable agreement. I believe that you are able to get the agreement enshrined in a court order - that's what consent orders are for.

I'm not sure of the procedures so I'll ask the Children's Legal Centre to pop by.

Dear FM

It’s good to hear that you have been able to reach an agreement regarding contact with your ex partner. Contact routines are often more likely to be successful where parties have reached an agreement themselves.

In relation to having your agreement enforced by the Court it is possible to apply to Court to have your agreement made into a legally binding Consent Order. However the Court operate a ‘no order’ principle, meaning that that they will only put a Court Order in place where they feel this is completely necessary. When considering a child matter, such as contact, the Court will set aside the ‘no order’ principle and create an Order where they feel it is in the Child’s best interests to do so.

You are able to apply to the Court for the Consent Order yourself; the form you will need to complete and submit is the C100. This form can be obtained from your local County Court or from the Ministry of Justice Website, under the forms heading in the HM Courts section of the website. This form will need to be filed at the County Court local to where your son lives. There will be a court fee payable. Should you wish to apply to pay a reduced fee based on your income you can do so by completing and submitting form EX160.

There will then be several court hearings during which the Court will consider the agreement proposed and what contact should be awarded. It is not simply a case of completing a form which makes the agreement binding; a similar process will be followed to when applying for a Contact Order where there is no agreement. Whilst considering the proposed agreement the Court will have regard to the welfare checklist given in section 1(3) of the Children Act 1989. Namely,
* The ascertainable wishes and feelings of the child concerned (considered in light of his age and
understanding);
* His physical, emotional and/or educational needs;
* The likely effect on him of any change in his circumstances;
* His age, [censored], background and any characteristics of his, which the court considers relevant;
* Any harm which he has suffered or is at risk of suffering.
* How capable each of his parents and any other person in relation to whom the court considers
the question to be relevant, is of meeting his needs;
* The range of powers available to the court (under the Children Act of 1989) in the proceedings in question.

As mentioned, it is not automatic that the Court will make your agreement into a legally binding Contact Order. Circumstances where such agreements are made binding are often where there have been a number of breakdowns in contact agreements in the past and therefore it is felt to be in the child’s best interests to make an Order in order to provide for contact to take place regularly.

Should you have any further questions or wish to discuss your situation further please call our Child Law Advice Line on 0808 0208 880 or speak to one of our advisors via our web chat facility which can be found on The Coram Children’s Legal Centre website at http://www.childrenslegalcentre.com/ .

We hope this information has been of use to you and wish you well as you take this matter forward.

The Coram Children’s Legal Centre

Whilst considering the proposed agreement the Court will have regard to the welfare checklist given in section 1(3) of the Children Act 1989. Namely,
* The ascertainable wishes and feelings of the child concerned (considered in light of his age and
understanding);
* His physical, emotional and/or educational needs;
* The likely effect on him of any change in his circumstances;
* His age, [censored], background and any characteristics of his, which the court considers relevant;
* Any harm which he has suffered or is at risk of suffering.
* How capable each of his parents and any other person in relation to whom the court considers
the question to be relevant, is of meeting his needs;
* The range of powers available to the court (under the Children Act of 1989) in the proceedings in question.

As mentioned, it is not automatic that the Court will make your agreement into a legally binding Contact Order. Circumstances where such agreements are made binding are often where there have been a number of breakdowns in contact agreements in the past and therefore it is felt to be in the child’s best interests to make an Order in order to provide for contact to take place regularly.

a) My son is three and a half.

b) My son is in good health. He loves both his parents, and his little sister. He is due to start school next September and we are seeking to place him in a school nearer to his Mum. I do feel that the schools in my neighbourhood have a better reputation to those where his mum lives, but she has him four nights a week to my three and it's more convenient for her. This isn't a particular issue at the moment, but should my son's educational attainment be compromised in any way I will look to revue the situation.

c) There will be no change in his circumstances.

d) As I mentioned, he is three and a half and a perfectly normal little boy.

e) My son was injured at nursey, which is also his mum's place of work. The nursery was reported to Ofsted due to the fact that the accident occured whilst they were not adhering to the legally required child-to-staff ratio. The complaint was upheld. Both he and his mother remain there, which was/is a major bone of contention between me and his mother. Last year, when contact was stopped, my ex made a number of allegations about me and I was arrested, but later released without charge. These allegations were made by my ex after I had told her that I was concerned about her irresponsible lifestyle and intended to pursue a residency order. After correspondence through my solicitor I managed to resume overnight contact within two months and my ex has not spoken of her allegations in the proceeding 18 month period.

f) My ex currently works part-time as an early years practitioner. I am a freelance media practitioner and also rebuilding a film education company that I established in 2003. We are both more than capable of looking after our son's needs.

g) I'm unsure of the powers that are potentially available to the court in this matter. I'm not asking for residency, as I enjoy a shared residency arrangement. I would be asking the court to recognise that my son has two homes and is looked after by two parents who would both, I assume, be determined as resident parents?

At the moment our arrangement is not enforceable and, despite the shared residency agreement, my ex would probably be considered as the sole resident parent and can stop contact at her discretion. I'm concerned that my son's schooling may become an issue at some point in the future. I don't trust her emotionally and have spent the last 18 months worried that the slightest comment could trigger another situation were I don't see my son.

I was hoping an uncontested order would be straightforward, but the way the CCLC have outlined the proceedure for obtaining an order makes me think that my ex will balk at the prospect of having to attend several hearings. If she feels that she, or her parenting, is being judged she'll go into meltdown and I'll be right back to were I was last year.

Had I pushed my solicitor to move towards a consent order, I suspect that it would have been done and dusted by now. The matter would be resolved.

I honestly don't know whether this option would be a particularly productive excercise? It may only serve to make matters worse between me and my ex, which is actually the last thing that I want. However I never want to be in the situation that I found myself in last year!

Life! Not easy is it?

Hi FM
No, unfortunately it rarely is - in my opinion, in the light of CCLC advice, your best option is to leave matters as they are for now but you have the information you need should Contact become difficult.

I remember when I first divorced, my ex moved back to the north west so I had a 400 mile round trip drive every alternate Sunday to see my kids, yet my ex still 'asked' me to do errands or small DIY jobs, and I had little option other than to do these to keep things civil.

I remember when I first divorced, my ex moved back to the north west so I had a 400 mile round trip drive every alternate Sunday to see my kids, yet my ex still 'asked' me to do errands or small DIY jobs, and I had little option other than to do these to keep things civil.

Things are pretty civil with my ex, but that's largely because I refuse to get drawn into her day-to-day life. I'm always respectful and polite, but I prefer to communicate via email and text. I get a sense that this annoys her and I suspect she feels that I'm creating a paper trail for future reference (which is true to a certain extent).

Here's an example of how frustrating this can be:

After our split and during the period that we were communicating through solicitors my son was injured at nursery on two further occasions. Both injuries occured within a matter of weeks of each other and left my son with a pair of black eyes and severe swelling to his cheek bones. After the bruising went away my son was left with mouse-like swellings under each eye, which I brought to the attention of my ex's father and asked that my son be taken to his GP to be checked out and refered for x-ray if need be. I assumed this had happened, but recently discovered this wasn't the case.

It's been just under a year since my son was injured and he still has swelling under each eye. I asked his mum if she'd taken him to her GP or hospital after the accident and she just became defensive, going as far as denying that there was any swelling. I had to physically point out the swelling to her (which was as noticeable as the nose on his face). I explained that whilst I didn't really fancy sitting for hours in A&E with a three year old, I'd be prepared to do that to get him checked out. She agreed to take him to her GP. After a month of 'forgetting' to do it, she finally made the appointment. I took my son and the GP saw the swelling immediately, checked him to make sure that his cheekbones were intact and diagnosed that the swelling was a result of fatty deposits building up in the area of the initial tissue damage. He said it looked worse than it was, but it was nothing to worry about and the swelling would disapear over time.

I don't feel that I should have to apologise for being concerned about my son's welfare, but I have to walk on egg shells just to avoid upsetting her. I should be able to call his GP and make an appointment myself, obviously discussing it with my ex first, but without it being dependant on her permission.

A shared residency arrangement suggests that there are TWO resident parents with shared rights and responsibilities, but would any order (consent, contact or residency) actually recognise such a scenario? Would it actually state in black and white that a child has two homes? Or would it just outline the level of contact a court decided an applicant should have? If it's a case of the the latter then a shared residency arrangement appears to be nothing more than an understanding between two people, but one that has no real weight in law. It would perhaps be more accurate to describe it as a generous contact arrangement...