Shared residence orders, the paramountcy principle and law's gendered understandings of parents' responsibilities

Until comparatively recently shared residence (SR) was generally thought not to be in children's best interests. It was said to confuse children, and consequently such orders were only made in exceptional circumstances, and at the determined request of both parents. In contrast, it has been said in Re D [2000] and subsequent cases that shared residence orders can benefit children inter alia by improving parental co-operation and ensuring both parents continued involvement. This changing application of the welfare test under Section 1 of the Children Act 1989 to shared residence could be taken to suggest that a presumption in favour of SR is developing. This paper seeks to argue against such a presumption. It examines the understandings of family which underpin the law regulating disputes between parents over children; to identify the motivations behind changing attitudes to shared residence. It argues that English law as a current construction of parenthood as permanent is grounded in the traditional liberal public/private dichotomy and the patriarchal nuclear family ideal. This, combined with the emphasis on party-negotiated compromise and conciliatory behaviour now influenced by post-liberal thinking, leads to particular understandings of how parents ought to behave. These expectations are expressed through child welfare discourse and the paramountcy principle, translated into rigid binary categories of good and bad post-separation parenting. Not withstanding the gender-neutral language of the legislation, the normative expectations law places on parents are highly gendered. Law constructs caring as an unseen and unrewarded outpouring of love within the unregulated private sphere; it therefore tends to concentrate on the regulation of rights rather than caring responsibilities. Moreover, law's construction of motherhood as natural and private leads it to concentrate on fathers' rights. It is argued that this is not only to encourage fathers, but also to secure a male influence over mother-headed families and contain wider social anxieties by recreating nuclear families in a hierarchical, bi-nuclear mould. Such a use of shared residence is unlikely to achieve its implicit goals, and moreover stands in direct conflict with the insistence in s1 of the Children Act 1989 that the child's best interests are paramount.