Jennifer Ball
- Senior Associate
- Family & Divorce
50/50 shared care
Divorce/separation is an incredibly difficult time for all parties involved and often the care arrangements for any child(ren) of the marriage are an especially emotive issue to resolve. In the vast majority of cases, both parents simply want the best for the child(ren) but often their views on what this looks like are different.
Whilst there was historically a view that the mother is the primary carer of any child(ren) there has been a shift in the way cases are dealt with in the Family Court. Jen Ball, senior associate in the family team at Wedlake Bell, helps you to understand how the Court deals with these cases and what they take into consideration when determining the care arrangements for children.
Will the Court intervene in respect of care arrangements for our child(ren) on separation?
If an agreement can be reached between you and the other parent in respect of the care arrangements for the child(ren) then the Court will not intervene. If an agreement is reached, it would be prudent to record the care arrangements and any ancillary matters linked to the care of the child(ren) in a Parenting Plan – for example who will attend medical appointments, how decisions on schooling will be made. This is not mandatory, but can help avoid a lengthy and costly court battle.
What is 50/50 shared care?
50/50 shared care refers to an arrangement where the child(ren) spends an equal number of nights with each parent following separation or divorce. During term time one usually looks at the arrangements on a 14-night basis, so an equal shared care arrangement would see the child(ren) spending 7 nights out of 14 with each parent.
This does not mean that the child(ren) spend 7 consecutive nights with each parent. It is open to parents to agree whatever pattern works for their family and we can discuss with you how this may work in practice. The school holidays, for example, are often treated differently and in a 50/50 shared care arrangement could see the child(ren) spending half of the school holidays with each parent. This is usually in a different pattern to the term-time arrangements, for example in 7 night or 14 night blocks.
Are shared care arrangements and 50/50 shared care the same thing?
No – a shared care arrangement does not necessarily mean 50/50 shared care. By way of example, you could have a shared care arrangement which sees the child(ren) spending 9 nights out of 14 with one parent and 5 nights out of 14 with the other parent during term time.
The Court may well order a shared care arrangement, with the child(ren) having an unequal number of nights with each parent and this will be driven by a number of factors (summarised below) and what is reasonably practicable.
Ultimately, the Court is focused on welfare and what the right arrangement is for the child(ren), not what the sense of ‘fairness’ is for the parents.
Is there a legal presumption of 50/50 shared care in England & Wales?
No. The Children Act 1989, as amended by the Children and Families Act 2014, introduced the presumption that parental involvement furthers a child’s welfare, however, this does not mean that:-
a. it is always the case that parental involvement furthers a child’s welfare (for example where there are serious welfare and safeguarding concerns); or
- it is always the case that parental involvement furthers a child’s welfare (for example where there are serious welfare and safeguarding concerns); or
- it translates into an equal shared care arrangement.
What does the Court take into consideration when deciding whether a shared care arrangement is appropriate?
When determining the care arrangements for the child(ren) the Court will always apply the welfare checklist, set out at section 1(3) of the Children Act 1989. This includes:-
- the ascertainable wishes and feelings of the child(ren) concerned (considered in the light of their age and understanding);
- their physical, emotional and educational needs;
- the likely effect on them of any change in their circumstances;
- their age, sex, background and any characteristics of theirs which the court considers relevant;
- any harm which they has suffered or is at risk of suffering;
- how capable each of their parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting their needs; and
- the range of powers available to the court under the Act in the proceedings in question.
Ultimately, the child(ren)’s welfare is paramount and whilst a 50/50 equal shared care arrangement can be considered, the Court will only order such an arrangement if they consider it to be in their best interests. Relationships and logistics play an important part in the court’s deliberations. Children need to be feel supported by their parents and able to manage the transitions between houses without stress or difficulty.
How Wedlake Bell can help
We understand that determining the care arrangements for your child(ren) may be an incredibly difficult topic. If you need advice on making or defending a court application that involves the determination of care arrangements for your chil(ren), or if you are affected by any other issue in this article, the Wedlake Bell Family team can assist. Contact Jen Ball on jball@wedlakebell.com or 0207 400 7773 for a no-obligation chat about your circumstances and how Wedlake Bell can help position you for success. Our children’s law practice specialises in child arrangements order applications, applications relating to schooling and prohibited steps orders, abduction cases and internal and international relocation cases.
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