It has become increasingly common for applications to be made to the Family Court for a ‘Shared lives with order’ as opposed to ‘spend time with’ applications.
Overview
A parent can make an application under section 8 of the Children Act 1989 to ‘spend time with’ their child/ren and to set out the arrangements for when they will get to spend time with them. Alternatively, a ‘lives with order’ can be applied for which sets out with whom the child/ren shall live with and in doing so that parent is afforded the ability to take the child/ren abroad for up to one month without the permission of the court or the other parent, as well as anyone else that holds parental responsibility for the child/ren.
Parent’s may see a ‘live with order’ in their favour as a way to have control over the amount of time the child/ren will have with the other parent, including obstructing holiday’s aboard, as the parent without a ‘live with’ order will need the permission of the ‘live with’ parent or the court to take the child/ren abroad. It is apparent to the Family Court that when there are no safeguarding concerns there are many good reasons for both parents to be afforded the ‘live with’ order, even if the time split between the parents is not equal.
AZ v BX (Child Arrangements Order: Appeal) [2024] EWHC 1529 (Fam)
The recent decision in AZ v BX deals with the issues surrounding shared live with orders. In this case, the Judge made findings that: there were no safeguarding issues, the parents were incapable of working together, the parents failed to appreciate the importance of the other in the lives of the children and that the mother had controlled contact.
In the first instance the court made an order for the father to spend time with the children on alternate weekends during term time with an evening during the week and a 50% split of the school holidays. However, the Judge granted the mother the ‘lives with’ order.
This decision was appealed and the Appeal Court concluded that the following principles apply to a decision whether to make a ‘shared lives with order’ [77]:
- The choice is not merely a question of labelling, and it is likely to be relevant to the welfare of the subject children. The principles of CA 1989 s1 must be applied.
- A ‘shared lives with order’ will result in an unmarried father gaining parental responsibility which is a material difference to consider (although not applicable in this case).
- “In every case the appropriate choice of order depends on a full evaluation of all the circumstances with the child’s welfare being the court’s paramount consideration”.
- “The choice of the form of any lives with order should be considered alongside the division of time and any other parts of the proposed child arrangements order”.
- “A shared lives with order may be suitable not only when there is to be an equal division of time with each parent but also when there is to be an unequal division of time”.
- “It does not necessarily follow from the fact that the parents are antagonistic or unsupportive of each other that a shared lives with order will be unsuitable”.
The Appeal Court went on to consider at [81] that “the welfare advantages for each child of a shared lives with order in the present case would be that:
- It would make it more difficult for either parent to regard themselves as being in control of contact or to seek to control contact – a problem that the Judge had specifically identified.
- In particular, it would mitigate the effects of the mother’s attempts to control contact…It would thereby put the parents on an equal footing when seeking to make arrangements for the children.
- It would also put the parents on an equal footing with regard to holidays abroad including during school holidays when the children are going to spend equal time with each parent.
- A shared lives with order would signal to each parent that each was of value in the lives of the children, something the Judge had found each parent failed to appreciate.
- It would also signal to the children that each parent has, in their capacity as parent, the same inherent importance in the children’s lives.
- It would promote a sense of stability within the family: whatever the disagreements between the parents, the court had ordered that the children shall live with both of them.”
Summary
In consideration of AZ v BX, it appears there could be a shift towards more ‘shared live with’ orders being made, which can be seen as a positive move to putting parents on equal footing even if the split of time is not equal, with the children having an arrangement that accurately reflects their lived experience and highlighting the importance of both of their parents in their lives. It is evident that a ‘live with’ order in favour of one parent is not always the most favourable for the subject children and therefore the family court may seek to consider ‘shared live with’ orders more often rather than a default ‘live with’ order in favour of one parent when it serves no purpose to the best interests of the child/ren to exclude the other parent from a ‘live with’ order. It is also important to note that in such cases where the parent’s co-parenting relationship is acrimonious, a ‘shared live with’ order can help prevent control of contact and allow the subject child/ren to have a meaningful relationship with both parents.
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The views stated in this article belong to the writers in a personal capacity. No warranty is given, express or implied, in respect of the contents of this article. Nothing in this article is tendered as or is intended to be taken as legal advice and the contents should not be construed or relied upon as legal advice. Specialist legal advice should always be taken in every case noting that the application of the law may vary according to the individual facts of the case and the nature of the dispute.
Keywords: Private Law Children, Child Arrangements order, Live with Order, Shared Care Order, The Children Act 1989, AZ v BX (Child Arrangements Order: Appeal) [2024] EWHC 1529 (Fam)
