Should a parent who is being excluded from their child’s life apply for contact or for residence? There are arguments in favour of both.
Until an order is made, assuming you have Parental Responsibility for your child, both parents are deemed to have equal legal status, regardless of how much time the child spends with each. Once an order is made, however, the status of each parent changes.
When a court orders the standard arrangement of residence with one parent (usually the mother) and contact with the other the effect is that the resident parent acquires all authority over the child and the other becomes a second-class parent.
The implication of this is that if you apply to the court for contact you are in effect requesting the court to strip you of your equal status and impose on you an inferior status.
The usual recommendation made by fathers’ organisations, therefore, is to apply for shared residence. They maintain that unless there are very good reasons it is not appropriate that your child should live with you, you should not be asking for contact.
A further argument against contact is that since Contact Orders can carry the implied threat of committal they are distressing to mothers and are thus not in the best interests of their children. Even Lord Justice Thorpe has said that unless a father makes an application for residence there is little the courts can do to help him.
The problem with this approach is that a shared residence order is very difficult to enforce and can only be enforced via transfer of residence or committal. If there is a situation of conflict, in which a parent has approached the court because contact is being obstructed, it is irresponsible to advice a parent to apply for an order which is unenforceable. A contact order, on the other hand, can now be enforced using the sanctions available under the Children and Adoption Act 2006.
A best-of-both-worlds compromise appears to be an application for a shared residence order plus defined contact, but this is still a residence order and thus still unenforceable. What these orders actually resemble is the traditional sole-residence-plus-contact model but without the enforceability of a contact order. They thus enable the courts to retain their conventional approach but evade their responsibility to enforce.
Which order you apply for will depend on your individual circumstances, whether you are able to offer your child shared residence, and how likely you think it is that the respondent parent will comply with the order.