Autopoietic theory and the current (mis)use of shared residence orders

Shared residence, where children alternate between two separated parents' homes, is known to be demanding for all involved, but particularly for the children. Under Section 1 of the Children Act 1989, a court choosing a residence arrangement must have the child's best interests as its paramount consideration. It has, therefore, previously been thought that shared residence should remain limited to a small number of committed families. Instead, it is increasingly used in high conflict cases litigated under S.8 of the Children Act 1989. This paper uses autopoietic theory to explain why the case law has developed this way, and why this new strategy is unlikely to be successful. An order, which was rejected as prima facie wrong prior to the 1989 Act, and was then for a long time held to require exceptional circumstances, is now made almost as a matter of routine, not only where it reflects the practical realities but also in circumstances that would more comfortably be labelled contact, in order to teach parents to cooperate. This new understanding of shared residence has no support in the legislation or in empirical research. Instead, it has originated purely within law's circular chains of communication, as the result of a selective reinterpretation of knowledge from the child welfare sciences and a need to respond to pressure from the political subsystem; separated fatherhood has become a problem, which is perceived to require a legal solution. This paper traces the interaction between the three autopoietic subsystems of law, child welfare science and politics, examines the influence that systems' internal perceptions of power have on these relationships and argues that since parents, too, use the processes of re-entry and redundancy to reinterpret or reject the legal subsystem's messages this use of the law is more likely to harm than to benefit children.