What's In A Label? Shared Care, Parental Power Dynamics, And The Children's Best Interests

For separated parents, a key focus is how and when their children will spend time with each parent. The law gives parents autonomy to find solutions that suit their family. When parents agree, this flexibility aligns with how parenting works in practice.

However, agreement isn't always possible. When court intervention is necessary, it's important to understand how the Court will decide these issues.

The Court's primary consideration is the child's welfare. The Court retains discretion and evaluates all circumstances of the case to decide what is best for the child. There is no fixed formula or 'starting point' to convince the Court to deviate from. The only presumptions are:

1. Unless shown otherwise, it is in the child's best interests for both parents to be involved in their life. This does not mean equal time but that both parental roles matter.
2. The Court only makes orders when it is better for the child to have one. If parents can agree without court involvement, no application is needed.
3. Delays in deciding child arrangements during court proceedings are not in the child's best interests.

Child arrangements

Cases involving child arrangements, especially where one parent seeks shared care but the other resists, can be acrimonious and emotional.

In Between Mother v Father [2025] EWFC 247, the parents had two children aged 8 and 6. The Court ordered a shared care arrangement, with the children spending equal time with each parent. The mother appealed the decision, she thought the children should spend 9 nights out of 14 with her and 5 nights with their father). She wanted the order to reflect that the children 'live with' her and 'spend time with' their father instead of shared care.

The Court's view was that 'the fundamental issue is the parental relationship' but that parents struggling to co-parent and deal with the ramifications of the breakdown of their relationship was 'outside the Court's remit'. The court welfare officer had reported that the children enjoyed time with their father and raised no safeguarding concerns. Considering all the circumstances of the case, the Court upheld the shared care order, and the children spending equal time with each parent, on the basis that this arrangement was in the children's best interests.

Key takeaways:

1. An acrimonious parental relationship is not, in itself, a bar to a shared care arrangement. As stated in L v F [2017] EWCA Civ 2121 "there was a time when the orthodox view was that shared care should not be ordered where the parental relationship is bad...but authorities show that there is no longer a principle to this effect.'

2. The child's welfare and the specific facts of the case are key in determining arrangements for children and whether there should be shared care or 'lives with/spend time with' orders. This is 'not merely labelling.' The Court's aim is not to promote one parent's role over the other but to determine what is best for the child. A shared care order can help encourage parental cooperation, putting parents on an equal footing. A sole 'lives with' order risks worsening co-parenting tensions by creating a perceived imbalance of parental authority.

3. Shared care orders can be appropriate even if there is an unequal division of time between the parents.

In DAL v DAD [2025] EWFC 178, the Court emphasized that child arrangements must be guided by a consideration of what is in the child's best interests, not some perception of 'arithmetic equality' for the parents. Child arrangements should reflect the child's lived experience and specific needs. The 'right answer' therefore will look different for each family.

In this case, the Court's view was that the child should 'live with' their mother and 'spend time' with their father, due to the father's work pattern and him prioritizing his own needs. The Court noted that the child's time with their father could increase if he made further compromises to adapt to the child's needs.

The Court was clear that a parent's parental responsibility (a parent's ability to have an equal say in key decisions about the child, for example relating to education and medical care) was neither increased nor diminished as a result of the lives with/ shared care labels.

In practice, the only distinction between a 'lives with' order and a 'shared care' order is that a parent with a 'lives with' order can take the child outside of the jurisdiction for up to a month at a time without the other parent's prior consent. However, in reality, these labels can be important in how each parent's role is perceived by the other – this can also then impact on the child's perception of each parent's role and on the parents' ability to parent together into the future.

A 'joint lives with' label can also be important to the child's welfare – in ED v MG [2025], this label was ordered by the Court to ensure that the relationship between the child and their father could be maintained. The parents had the child via IVF using a sperm donor. The father was on the birth certificate, but the mother sought a declaration he wasn't the father. The Court agreed he was not biological father, and so his being named on the birth certificate did not give him parental responsibility for the child. However, the Court's view was that he was a 'psychological parent' and that it was in the child's best interests for him to maintain this role, granting him parental responsibility by way of a joint lives with order. The Court's view was that it was in the child's best interests to have two loving parents concerned for the child's welfare.

Conclusion

It can be difficult to focus in on the children's best interests when the court system inevitably brings with it an adversarial approach to the sensitive issues of child arrangements and parenting dynamics.

Court proceedings are time consuming, costly and can lead to further polarization between parents. As a result, the Court is clear that non-court dispute resolution should be explored before initiating Court proceedings, so that issues relating to the children can be discussed and agreed out of court. This includes mediation, arbitration and one couple one lawyer models such as Uncouple (for more information see our FAQs on non-court dispute resolution) If the Court's involvement is nonetheless required, the Court will consider the specific circumstances of each case carefully to determine what is best for the children.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.