Family lawyers, a question about shared residency

[Mendi]

I have a friend who has a difficult relationship with her DD's dad. He winds her up and says things to the DD about her and whenever DD comes back from his, she's a bit difficult for a day or so (she's 4). All of which I've told her is just par for the course and not a basis to withhold contact.

Recently the dad made an application for a contact order and a residence order. Going for shared residence. The contact order was made (every other weekend and one mid-week night every week) and has been complied with.

Now the application for shared residence is pending. Her solicitor has told her to write down her feelings about the dad and his care of the DD so the solicitor can do whatever she needs to do in relation to his application.

My friend is funded by legal aid.

All of my friend's objections to the dad relate to their mutual lack of respect for each other and what I think of as general power/control issues. E.g. My friend doesn't like him keeping the DD up late at night, doesn't like where he takes her on holidays, thinks he feeds her crap and lies to her about her mother. I understand how annoying all that is but my understanding is that no family judge is going to give a toss about any of that when it comes to residence. I can't see why this application needs to be heard at all as obviously the outcome will be that a shared residence order will be made. Right?

I suggested to friend that she ask her solicitor if that was the solicitor's view and the reply was yes, but please send me your comments on the dad anyway so I can put them in my response to his application.

I don't really understand why the solicitor is doing this. What a waste of time and public money. Is it just that she needs to be paid and the legal aid system requires attendance at the hearing to be paid?

I am concerned about this going ahead because the father has insisted on a CAFCAS report on the DD, and the child is already disturbed by the constant war between her parents. She loves her mum AND her dad (even though he is a bit of a knob).

I want to suggest to my friend that she save everyone the distress of this, given the outcome seems assured anyway, and just let him have the shared residence. But is it possible to do that and is there any reason not to in these circumstances?

[Lonecatwithkitten]

I am not a family lawyer, but have similar annoyances to your friend. I was encouraged by my solicitor to focus on how these impacted on my DD. So when she is kept up late at night she really tired and struggles at school the next day, feeding crap she is putting weight and this bad for her health, unsuitable outings (very difficult unless risky). It may change nothing, but establishes current concerns that are of use in future.
My solicitor used the words child centric as being what the court is looking for.

[betterthanever]

Cafcass are carrying out S7 reports less and less due to the cost. As far as I know parents can't `insist' on one. Shared residence would not affect the contact situation I don't think as I am not a lawyer. Unless there are serious safeguarding concerns which is doesn't sound there is, I very much doubt a report would be done.

[asylumum]

Was in court this Monday. Similar situation, I had put across to my solicitor how my ex cant feed or even clean up our 5 year old DD, Cafcass guardian report indicated that my EXs house was filthy full of junk compared to my house which is spotless clean, DDs room is decorated all in pink at my house, while she shares same bed with dads all this was in Cafcass report but hey the judge didn't look at any of this , my ex came out of court with another extra day given to him on top of the 2 days midweek contact. I Paid so much money to my solicitor but ?????.

[Spero]

I am a family lawyer and I think that the whole concept of 'shared residence' is pretty useless. The only time I push for it is when I think that the resident parent is trying to push out the non resident parent and there may be some benefit for my client of having status of 'shared resident' parent.

It doesn't have anything to do with the contact that is happening on the ground. It is very rare to get 50/50 arrangements as the logistics are difficult. So almost inevitably a child 'lives' with one parent and 'visits' the other. Calling that arrangement 'shared residence' or 'residence order and contact order' makes no practical difference at all.

The courts have to do what is in the best interests of the child. The 'no order principle' says don't make orders unless they are needed. Shared residence orders are rarely needed. I don't think it is worth making a fuss over them or wasting time and money trying to get one or deny one - unless there is some benefit in demonstrating to other parent and oustside world the importance of the non resident parent.

In your friends case he is having overnight contact on weekends so any arguments that he isn't 'fit' to have shared residence seem a bit of a non starter. If he is that bad, he shouldn't be having overnight contact or even unsupervised contact.

My response would be there is no need here for a shared residence order, but if he is dead set on one and has already been granted significant over night contact, you have to consider whether it is worth the time and emotional energy contesting it.

[asylumum]

Was in court this Monday. Similar situation, I had put across to my solicitor how my ex cant feed or even clean up our 5 year old DD, Cafcass guardian report indicated that my EXs house was filthy full of junk compared to my house which is spotless clean, DDs room is decorated all in pink at my house, while she shares same bed with dads all this was in Cafcass report but hey the judge didn't look at any of this , my ex came out of court with another extra day given to him on top of the 2 days midweek contact. I Paid so much money to my solicitor but ?????.

[Spero]

If the judge ignored that evidence then you have to appeal.

If however the judge didn't accept that evidence was true, or it wasn't as bad as you say, then you are stuck with order.

As I wasn't at court and haven't read the documents I can't say which scenario is true.

All I can say is that judges are obliged to take into account all relevant evidence and give reasons for their decisions. If they fail to do this their decision is 'wrong' and can be challenged on appeal. If this was a district judge you make an application to appeal to a Circuit Judge. I think it is a few hundred pounds to pay for application but you may be entitled to public funding.

If you seriously feel that the Judge failed to do his/her job and your child is now at risk, you must appeal.

[asylumum]

It was all in the Cafcass report. The only thing he really looked at was the recommendations that the Cafcass made as regards to when DD should be with her dad or stays me. Initially he went hard on the Cafcass as he thought her recommendation was not just practicable as it would make DD move around here and there all the time, surprisingly after having a go at the Cafcass, who at this point was frowning he implemented her recommendation. Its all about quantity and not quality or what is the best interest of the child with these courts.

[asylumum]

It was all in the Cafcass report. The only thing he really looked at was the recommendations that the Cafcass made as regards to when DD should be with her dad or stays me. Initially he went hard on the Cafcass as he thought her recommendation was not just practicable as it would make DD move around here and there all the time, surprisingly after having a go at the Cafcass, who at this point was frowning he implemented her recommendation. Its all about quantity and not quality or what is the best interest of the child with these courts.

[Spero]

Judge has to make a decision according to what he determines is in the best interests of the child. If you think he ignored relevant evidence, that is an appeal ground.

Were you represented by a lawyer at that hearing? Can he/she explain what happened?

It is never helpful when people leaving court feeling dissatisfied or not understanding the outcome.

[Mendi]

Thanks all, and especially Spero.

I don't know what the dad has said but CAFCAS are definitely involved and there is an appointment soon for them to interview the child and parents separately.

Spero, if my friend were to decide not to contest the father's application, what happens in practice? Does the judge then not make an order as one is not needed? Or does he get one anyway if he pushes for it?

[Spero]

Good question!

In theory, even with an application that isn't opposed, a Judge is still supposed to ask him/herself if such an order is 'necessary'. A lot depends on the individual judge. Some would get cross and refuse to make order, others would take view that if someone feels strongly enough to ask for it, they should make an order.

You could send a consent order into court and ask court to approve it but that would mean your friend enthusiastically endorsing his proposals and I don't think she does - she is just saying she can't be bothered to argue anymore.

So if I am right that she is prepared to let whatever happens happen, just let him get on with it and she can say she is not supporting, but not opposing either.

Then its up to the Judge

[Mendi]

Thanks Spero, she is coming over this evening to talk about it so I think I will suggest she take the neutral line. Do you think she can get the CAFCAS appointment cancelled on the basis that there is no need as she does not resist his application for shared residence?

[betterthanever]

It seems strange that cafcass are interviewing the children about this if it is just a shared residence issue. I have found advice on here from spero very knowledgeable and fair she is the best person to reply.

[Spero]

Thanks better, that is kind of you to say.

I agree I can't see the point of CAFCASS coming round in the circs - is there an order for a report? If so, they will have to put something together.

With regard to waste of public money, there is no legal aid now for these applications unless violence involved. Doubt this will actually save money in long term as people will now have to grapple with these issues without any legal help....

[Mendi]

OK so now friend has been round and I've seen the most recent court order and directions. It seems what's happened is friend agreed some time ago to a night of mid-week contact in addition to every other weekend but subsequently decided she wasn't happy with that as DD is so difficult after the contact. So she wanted to revoke the mid-week but stick with every other weekend.

So her solicitor was asking her to do a statement relating to both the contact issue and the residence issue. The directions provide for 2 further hearings in July and Aug.

I asked friend about what exact objections she has to the father's manner of care of the child and what came out was all more personal preference than what I think a court would consider grounds to limit contact. E.g. he just leaves her watching tv all day.

[Spero]

Unless the mid week contact is causing difficulties for eg with getting to school because he lives far away I don't think a court will want to reduce it.

You are right that the court won't want to get involved with different standards of parenting, as long as she is safe and well parents will be left to get on with it.

[betterthanever]

If cafcass are going to the expense of a section 7 welfare report then I think there must have more serious welfare concerns raised which does as Spero said raise the question why any over nights.

[Mendi]

Friend said that on the days the dad has to take DD to school, she is often late.

There are no welfare concerns from my friend's side - she just doesn't care for the way he looks after DD. But said he would never let any harm come to her.

Not sure what he might have said about her, but she is a great mum.

[RedHelenB]

It is deemed better to have less than perfect parenting by both parents therefore a spotless pink bedroom & being late for school wouldn't be sufficient reasons to influence one way or another.

[Mendi]

Thanks RedHelenB, that's what I have told her.