Law’s gendered understandings of parents’ responsibilities in relation to shared residence

In the family courts, parents are increasingly lectured by judges and told to behave more responsibly; they must recognise how their conflicts harm their children and take responsibility for co-parenting without further recourse to the courts (see, for example, D v D [2001] 1 FLR 495, Re J [2004] EWCA Civ 1188; Re T [2009] EWCA Civ 20, Re R [2009] EWCA Civ 358). It is in this context that the judiciary have overcome their earlier dislike of the shared residence order; what was rejected as prima facie wrong in Riley v Riley [1986] 2 FLR 429 ‘is nowadays the rule rather than the exception’, according to Mostyn J in Re AR [2010] EWHC 1346 (para. 52). This chapter argues that the case law has, during this decade, developed too fast in an undesirable direction (see also Cain in this volume). The available empirical evidence cannot prove shared residence to be superior to any other arrangement. Children’s outcomes depend on such a diverse range of known and unknown factors that it is well nigh impossible to draw clear conclusions, but it seems that formal orders have little impact (Breivik and Olweus 2006: 70; Gilmore 2006: 493).