Important family law cases: D v D,

Family Law|September 24th 2014

It may seem strange after writing some sixteen previous posts about ‘important cases’, but I have to confess that I’m not entirely sure what constitutes an ‘important case’. For some cases it is obvious that they are important, as they laid down some new principle that changed the landscape and that all subsequent cases followed. However, I don’t think that that should be the only criterion for determining whether a case was or is ‘important’. Some cases were more part of an on-going process of change, rather than a seismic event that single-handedly changed things forever.

Such it is, I think, with D v D, which may or may not take a place in other family lawyers’ Hall of Fame of important cases.

First a little background. The 1989 Children Act brought in residence and contact orders, which replaced custody and access orders. The Act made it clear that a residence order could be made in favour of ‘two or more persons who do not themselves all live together’, and thus both parents could be granted residence. Such orders became known as ‘shared residence’ orders, although the term ‘joint residence’ was also sometimes used. (Note that ‘shared residence’ does not necessarily mean the child spending equal amounts of time with each parent.)

In the years that followed the passing of the Children Act an argument arose as to when it was appropriate to make a shared residence order. The ‘norm’ for a child was thought to be that one parent should be granted residence, and the other parent should have contact. A shared residence order would therefore be unusual and only made in exceptional circumstances. In particular, a shared residence order depended upon the parents being completely able to cooperate and agree upon arrangements for the child.

The argument reached the Court of Appeal in 2000, in the case D v D.

I will be fairly brief with the facts. D v D concerned three girls, then aged 13, 11 and 9. Their parents separated, after which the girls lived with their mother but had very substantial contact with their father. The mother was granted a residence order. The parents weren’t able to agree the exact contact arrangements, and that matter went to court on a frequent basis.

In 2000 the father applied to the court for what he called a ‘joint’ residence order. The judge considering the application felt that the mother was using the sole residence order as a weapon in the war with her ex-husband “and that the making of a joint residence order underlying the status of the parents as equally significant in the lives of the children would be likely to diminish rather than increase that conflict.” Accordingly, he made a joint (shared) residence order.

The mother appealed. It was argued on her behalf that the cases previously decided indicated that shared residence orders should only be made either in exceptional circumstances or, at the very least, where it could be demonstrated that they would show a positive benefit for the children. In this particular case there were no exceptional circumstances and no evidence of any such benefit.

The Court of Appeal disagreed with that. Exceptional circumstances or a positive benefit to the child were not necessary for a shared residence order. All that had to be shown was that a shared residence order was in the interest of the child, in the accordance with the ‘welfare principle’ in section 1 of the Children Act. The judge had taken the view that a shared residence order was beneficial for the children, and there was no reason to disagree with him. Accordingly, the mother’s appeal was dismissed.

In the years following D v D and other similar cases shared residence orders became much more common than they had been previously. Residence orders (and contact orders) have, of course, now been replaced by child arrangements orders, with the idea of doing away with ‘labels’, but nevertheless the court can still specify that a child should ‘live with’ both parents, so the principles set out in those cases still apply.

Photo by Teresa via Flickr

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