Residence: What’s in a word?

We asked Kate Brooks to offer us some thoughts on this word “residence.” It is a word, especially in the world of family law, that continues to cause some confusion…

…When the words “custody” and “access” were replaced with “residence” and “contact” I think we all believed that progress was being made and the new terminology was designed to be less emotive.  This, combined with the “no order” principle, was designed to encourage families to decide between themselves where the children should live following separation and how and when the other parent should see the children.  It was hoped that all this would be achieved without involving the courts.

Although most would agree that progress has been made, there is still room for significant improvement and clarity about what “residence” really means.

Its most simple definition is that residence means where the child lives.  The reality is that it is much more than that because it is the resident parent who has all the power and as soon as one of the parents becomes the “non resident parent” they lose equal status and often have to resort to the courts if they don’t like what the newly acquired power of the “resident parent ”dictates.

Without duplicating the contents of the excellent blog of my colleague Kat McTaggart on shared residence, one of the most obvious difficulties with the definition of the word residence is that children increasingly spend significant time with both parents following separation.  If asked, the children may well say that they live with both their parents and this works very well for many families.   Shared residence has increased significantly over even the last five years and is a far more accurate reflection both of the reality of post separation for many families and perhaps more importantly, a fairer reflection of the position before separation.

Families, whether they stay together or separate are constantly going through changes, whether it involves moving house, of who is working, change of financial circumstances; the list goes on.  However, as soon as families separate, the current system seems to harp back to some kind of 1950’s nuclear family where there was a more defined role of breadwinner and primary carer.  As a family lawyer, I am finding it increasingly difficult to identify which party is the primary carer at the point of separation, particularly when the children are a little older.   Each party will have a very different view of their contribution and it seems to me that to label one of the parties the  primary carer and the other the non-resident parent is far more likely to cause problems than to set a framework for the best outcome for the children.

I agree that we do need to use shorthand and labels sometimes so that we can be clear about decisions for the children following separation but the word residence does create a two tier status which I do not believe was intended.  Changes are afoot to replace the word “residence” to “where the child lives”.  I am not sure that this is going to help a great deal.  In my view, the better option is to assume that there will be a shared residence arrangement unless impractical, albeit that the time spent in each household may well not be equal.   The financial impact of dealing with working around the needs of children can be dealt with in the financial settlement without giving undue power to the so-called primary carer and inadvertently penalising the so-called breadwinner.    

Written by Kate Brooks, divorce solicitor with Woolley & Co, family law specialists. Kate works with many parents who are separating and trying to negotiate the difficulties around residence and shared parenting. For more details visit www.family-lawfirm.co.uk.

 
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About onlydads

Single Dad living near Totnes in Devon. I founded www.onlydads.org in 2007 and live with my daughters Priya, 14 and Anya 11. I write about single parenting, work, overcoming trials and tribulations and sometimes not overcoming trials and tribulations.
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3 Responses to Residence: What’s in a word?

  1. Bruno D'itri says:

    A very interesting article! There is, indeed, much power in the terminology used.
    Pre-separation, its plain old mum & dad. Post separation, the above mentioned words are immediately brought into play by our family justice system and attached to each parent. And along with these arbritary ‘tags’ comes a disproportionate degree of control over the children. This, I suggest, generates or augments hostility between the parties and leads to unnecessary litigation. Indeed, following the introduction of shared parenting legislation in Australia, litigation decreased by 30%.

    In a bid to better serve child welfare, the British Government has made clear its intent to introduce shared parenting legislation.

    In response, Sir Alan Beith wrote to Mr Cameron last week, expressing his objections to any such change to the Children Act (1989) http://www.guardian.co.uk/law/2012/jul/18/family-law-confusion-lib-dem

    Mr Beith’s views closely reflect those of many lawyers working within the family justice industry. Many people suggest that such resistance to change is fuelled by vested interests, and it’s certainly not too difficult to understand, given the widely anticipated decrease in family court work. A sense of unfairness generates litigation and civil disobedience (F4J)): a greater degree of fairness reduces litigation.

    Mr Beith’s opposition to Shared Parenting legislation is, perhaps, best viewed in some historical and cultural context.

    In the 19th century, British family law was such that, if the father so wished, separated mothers were likely to lose all contact with their children. Development of the law occurred very slowly indeed. Some change came with the Child Custody Act of 1839 and the Matrimonial Causes Act of 1857, but it was not until 1925 that the welfare of the child became paramount. At every stage, there were numerous ‘Mr Beiths’ who resisted any development in family law.

    Even today, in certain Middle Eastern cultures, separated mothers are treated despicably and are often denied access to their children. Here, too, there are ‘Mr Beiths’ resisting change.

    Sadly, the injustices once experienced by British mothers are now being visited upon British fathers in 21st century Britain.

    A father can be fully involved in the day-to-day care of his children. And yet, following separation, he can find himself completely excluded from their lives.

    How can this possibly occur? Following separation, the family courts automatically seek to anoint one parent with the status of ‘Primary Carer’. This will usually be the parent who, prior to separation, undertook 51% or more of childcare duties. In most cases, it is the mother. The law then bestows upon that Primary Carer a grossly disproportionate degree of power and control over the children, vis-à-vis the ‘Non-Primary Carer’ (the father).

    Of course, in most cases, separated parents are able to focus upon the well-being of their children and come to a mutually agreed childcare arrangement.

    However, in many acrimonious cases, the Primary Carer ‘uses the children as weapons’ – to coin a phrase adopted by Sir Nicholas Wall, the President of the Family Division. The children are used as a means of punishing a former partner by restricting contact. Such abhorrent behaviour currently goes unpunished by the family courts, their rationale being that to punish the children’s Primary Carer is tantamount to punishing the children themselves. With no effective deterrent, such behaviour is set to continue. As we know, our Government is looking at ways of introducing such deterrence.

    Single Parent-Primary Carer or Shared Parenting? There now exists a plethora of contemporary scientific evidence which demonstrates, beyond all reasonable doubt, the significant emotional, developmental and educational benefits for children of their being permitted to remain in a close and meaningful relationship with both their parents, post separation/divorce. Indeed, fifteen such scientific reports were presented to Sir Nicholas Wall in the case of Re D (Children) [2010] EWCA Civ 50. Sir Nicholas reserved his judgment for three weeks in order to read this very extensive evidence. He concluded that family laws potentially relegated the harm done to children by irrevocably damaging their meaningful relationship with the Non-Primary Carer.

    Mr Cameron – to whose Government the scientific evidence was also presented – understands the need for family law to develop in line with contemporary scientific evidence and with the realities of 21st century parenting. We need only to look at last Summer’s riots to see where fatherlessness can lead. In contrast, Mr Beith appears to lag behind.

    I am one such Non-Primary Carer. Before separation, I was actively involved in the lives of my two sons. Post separation, I was excluded. Despite numerous court appearances, including three at the Court of Appeal, and despite being found by the courts to be an entirely loving, caring and responsible father, I have lost meaningful contact with my sons. I fought for years in a legal system which simply could not understand and/or give due weight to the importance of a father (or ‘Non-Primary Carer’) in the optimal development of a child.

    As I see it, the problem lies in the fact that the judiciary has opted to interpret the Paramountcy Principle of the Children Act (1989) by using the ‘Single Parent-Primary Carer’ paradigm. Relocation law, in the form of Payne v Payne (2001), is a prime example: it rides rough-shod over any possibility of shared parenting by placing thousands of miles and any number of oceans between children and their Non-Primary Carer.

    What Mr Cameron seeks to do is to rectify this judicial error by making it very explicit indeed to the judiciary that the full and meaningful involvement of a good and loving father is vitally important in serving the paramount interests of a child. In reality, there is no material conflict between the Paramountcy Principle and the Principle of a Presumption of Shared Parenting.

    Regards
    Bruno D’Itri

  2. Bruno D'Itri says:

    I’ve just been fiddling with the zoom function of the SatNav on my new car.

    I zoomed right out and managed to get the whole of Western Europe on the screen. This wasn’t particularly helpful in assisting me with my 1 mile journey to the local shops!

    Incidently, as a man, I feel compelled to use the SatNav for each and every journey, even short, familiar routes I could probably drive blind-folded!

    Anyway, while I was fiddling, it made me think about the Children and Families Bill, and about the need to ‘zoom out’ for perspective.

    There has, of course, always been a direct link between societal norms and legislation.

    Most significant shifts in societal norms have led to changes in legislation, but this has usually involved a tough struggle!

    Anti-discrimination legislation for people of different race, gender and sexual orientation all eventually followed in the wake of changes in society.

    However, in each case, the resistance from what I shall call ‘the forces of conservatism’ was powerful. There were significant vested interests in the status quo, and those who stood to lose out were not going to accept change without a fight!

    In each case, honourable campaigners for justice and reform were discredited, undermined, attacked and even murdered.

    Martin Luther King Jr’s letter from Birmingham Gaol touches my heart each and every time I read it. It is the quintessential call of any person facing discrimination and demanding justice.

    http://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html

    Now, I perfectly accept that Matt O’Connor of ‘Fathers 4 Justice’ is NO Martin Luther King Jr!

    However, his argument for justice for children is, in my view, Righteous. It is Good. It is Honourable.

    A child surely deserves to enjoy the love, care and guidance of two good and responsible natural parents.

    The ideology of parenthood of the 1960′s and 70′s saw the mother as the ‘natural’ carer and the father as the ‘natural’ financial provider. Family legislation reflected this ideology.

    Of course, societal norms have now changed. In 21st century Britain, BOTH genders are now viewed as natural carers and financial providers.

    Has legislation fully caught up with this societal change? No.

    Do fathers face systematic gender discrimination? Yes.

    Is this discrimination indirectly perpetrated via the legal constructs of ‘primary carer’ and ‘non-primary carer’? Yes.

    I am a good, responsible and conscientious parent. I know I am, because a judge found me to be so!

    And yet I was forced to endure two periods of separation from my beautiful children: firstly for 8 months and subsequently for 1.5 years.

    I now see my children once a month in a motel room in Eastern Europe.

    Any genuine ‘meaningful involvement’ in my children’s lives has been significantly undermined.

    I am not alone in my experience.

    There are thousands of perfectly good and caring British parents (mainly fathers) who face similar discrimination.

    To the “discrimination deniers”, to those who seek to preserve their vested interests in the status quo, and to those who are simply unaware of the discrimination, I say, think of that child, think of what he is missing, think of what you might say to him if he asked you why he couldn’t see his dad.

    Let us open our hearts and our minds.

    Let family legislation reflect modern parenthood.

    Let us support Tim Loughton MP and his shared parenting legislation in the Children and Families Bill.

    Regards
    Bruno D’Itri

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    is amazing, nice written and include almost all significant infos.
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