The criterea of ‘residence’ will also be a problem, although a Court order resulting from a contested hearing will, in terms of this judgment, be very hard for a local authority to argue with, even if not 50/50.

There will be more cases on this, I have no doubt.

1. How much less than 50% of the time can a child spend with a homeless applicant before they can lawfully be treated as not residing with them? And

2. If residence is not measured in time then what are the criteria for determining when a child is residing with a parent as opposed to staying with them?

Paragraph 48 of the judgment clearly envisages that a child can still reside with a second parent even though they spend less than 50% of the time with them. This means that it is not simply a question of time. This is just as well because in practice a 50-50 split is not going to be achievable. A handover at precisely midday on Wednesday for instance is likely to be impossible to achieve once let alone to repeat every week. Equally in practice the arrangements made by separated parents are such that the child usually spends sufficiently less than half the week with the second parent for the local authority to be able to treat that arrangement as staying contact rather than residence. It is therefore unlikely that it will be possible to run many test cases concerning 49% or 40% arrangements being claimed as residence.

On a public policy level I would have thought that the Courts are going to be extremely reluctant to allow challenges of authority decisions in this area where doing so would open the floodgates of families requiring a second property where the parents split.

Perhaps the question cannot be answered at all in terms of establishing a general rule to be applied to all families based on the amount of time which the child spends in each household. Instead I would expect that the general proposition will continue to be that a child can only be treated as residing (by agreement rather than pursuant to an Order) with one parent unless there are exceptional circumstances which mean that the child has to spend a lot of time living in two places. It is hard to think of an example but a medical condition which meant that one parent might be incapacitated for say two or three days each week might be a possibility.

My answer to the two questions (without reference to any authorities I am afraid) are:-

1. Very little indeed
2. Only very exceptional circumstances.

I would be very interested to know if any family lawyers out there can give examples of arrangements which led to the Courts making shared residence orders where that was not agreed. Presumably these will give some guidance as to what the exceptional circumstances might be.

I would suggest that if families with more than one child are splitting up and thinking of how best to arrange residence/contact they might think of having one child reside with each of them and sharing a room if they were both at either property at the same time. This is far from perfect but on the face of it both parents would be entitled to be housed under the homelessness legislation as they would each have a child residing with them. Clearly there would have to be evidence such as who received Child Benefit and where the schools recorded the children as living. I can’t say whether this arrangment would be seen to be in the children’s interests or a scam to get a property for each parent.