Family Law

Sarah Balfour, Irwin Mitchell

Practitioners considering the judgment of Lord Justice MacFarlane in M (A Child) [2014] EWCA Civ 1755 may note with interest his comments on the notion of shared care and the place that it has (or perhaps more accurately, does not have) within the new legislation. The two relevant paragraphs, which come towards the end of his judgment, are perhaps worth a closer look.

The case itself concerns internal relocation. Both mother and father were of Tanzanian origin but during the course of their marriage lived in London. The father had older children from a previous relationship, two of whom were at university, but living with him. The mother reported that the atmosphere within the family home was 'toxic' and made allegations of controlling and other behaviours against the father. The father alleged that the mother had absented herself and the child from the family home for long periods of time, without explanation.

The child, a boy, was 5 1/2 years old when the matter came before the Court of Appeal.

Proceedings were first initiated by the father, who following separation, sought a residence order in relation to the child. A month later, the mother unilaterally removed the boy and relocated with him to Newcastle.

It fell to the first instance judge to determine with whom and where the child should live. She made findings against both parties. Those against the father were, she accepted, more significant to matters in issue.

Notwithstanding those findings the trial Judge concluded that it was in the child’s best interests to be returned to the father’s home and that he should live under a shared care arrangement, where the mother, in principle should have a substantial part of that care. That depended upon her agreeing to return to London.

The mother successfully appealed. Lord Justice MacFarlane expressed concern as to 'the structure of the judge's decision and the use of the choice of home for the boy as being a way of enticing or leading the mother to return to London in a way which would be impermissible if the judge had been overt and made a condition of her order'.

He went on to question on whether or not the trial judge had really considered how a shared care arrangement would work between the parents, commenting:

'It is still the case that 50/50 shared care arrangements between parents are comparatively rare in private law children cases. Research shows that a number of factors have to be in place, practical matters such as the close geographical proximity, but, above all, the couple have to be on reasonable or good terms so that the to and fro of every day life for a child is accommodated without undue emotional fallout.

There is no longer any need, because of the change in the legislation, to impose a "shared" order under section 8. Both parents have equal status. So a division of time 50/50 will remain, in my view, a rare order and only to be contemplated where there is some confidence that it will not work to the disadvantage of the child, albeit that the aim is to give good quality and substantial time with each parent'.

Prior to the change of legislation there were a number of cases stressing that shared care need not equate to a strict 50/50 division of time. However the case law accepted that the categorisation of an arrangement as 'shared care', whatever the division of time, could carry symbolic force. That symbolism, however artificial could, in certain circumstances further the best interests of a child. It was perhaps most effective in cases where parents were not on reasonable or good terms.

In his comments Lord Justice MacFarlane seems to suggest that the need for symbolism has fallen by the wayside. This is, he says, because both parents already have equal status under the new legislation. The abolition of the terminology of 'contact' and 'residence' was widely welcomed as demonstrating the equal importance of the involvement of both parents. Paradoxically this might make some contested cases more difficult to resolve because in practice there is one less concession to make. Where the 'shared care' label is no longer a bargaining chip, does it all become about achieving equal time? If that is the case, McFarlane LJ’s words remind us that it will be rare that true 50/50 arrangements work on the ground, particularly where there is parental conflict.

It seems likely that this case will frequently be referred to in negotiations and in court when the question is 'how equal should shared care be?'