|
|
Law - A [JR]
The Royal Courts of Justice
Strand
London WC2
Friday 26th July, 2002
B e f o r e:
LORD JUSTICE THORPE
MR JUSTICE FERRIS
--------------------
A (CHILDREN)
--------------------
(Computer-aided transcript of the Palantype Notes
of Smith Bernal Reporting Limited
190 Fleet Street London EC4A 2AG
Tel: 020 7404 1400
Official Shorthand Writers to the Court)
--------------------
MR B JUBB (instructed by Messrs Harter and Loveless) appeared
on behalf of the Appellant
THE RESPONDENT appeared on his own behalf
--------------------
J U D G M E N T
(As approved by the Court)
--------------------
1. LORD JUSTICE THORPE: This an appeal
from the order of His Honour Judge Thompson, sitting in the
Ipswich County Court on 7th March 2002. He had to determine
what were the sensible orders to make in respect of two children,
C, who is 14, and S, who is 12. Their parents were the only
parties before the court, H, their mother, and D, their father.
2. The parties with the aid of the court welfare officer had
agreed an extremely sensible regime, whereby C would stay
with his mother on Monday and Tuesday nights and half of all
school holidays, whereas S would stay with his mother Monday,
Tuesday, Wednesday and Thursday nights and half of all school
holidays. That sensible regime was made possible as a consequence
of the mother's move from London to Sudbury, the town in which
the two boys were well established in the care of their father
and half-brother. It was agreed between the parties that the
order in respect of C should be a residence order to his father,
with a contact order to his mother defining the two nights
a week in the school term and the equal division of school
holidays. The only issue was whether there should be a similar
format for S, or whether the sharing between the two homes
should be reflected in a joint residence order.
3. The judge explained in his judgment why he rejected the
mother's application for a joint residence order and preferred
instead to make a sole residence order to the father. At the
same time he, at the invitation perhaps of both the parties,
but certainly of the father, said that neither should make
any application under the statute without leave. That, of
course, was a hurdle that he was empowered to put in place
by virtue of section 91(14) of the statute. He refused permission
to appeal.
4. The application for permission was accordingly redirected
to this court and came before Hale LJ, who granted permission,
saying:
“In principle, Children Act orders should reflect practical
reality rather than theoretical 'rights' or authority. If
a child is to spend a substantial amount of his time living
in each household then a shared residence order (settling
the arrangements with whom a child is to live ) will often
best reflect that reality: see D v D (Shared Residence Order)
[2001] 1 FLR 495, CA. A degree of co-operation is needed for
such arrangements to work whatever the court's order. If the
main reason for not making a shared residence order was that
the mother had only recently moved to Sudbury and needed time
to settle down, it was illogical to impose a section 91(14)
requirement which might suggest that the parties should not
seek to reflect that reality in a shared residence order as
soon as it had become firmly established.”
5. She also, in an exhortation to the parties, suggested that
they should renew their efforts to sort out issues in dispute
through the aid of others, whether lawyers, the Children and
Family Reporter, a family mediator, or other family members
and friends.
6. In consequence of that exhortation, solicitors for the
mother embarked upon the sensible process of finding a qualified
mediator in the Suffolk area. After a degree of journeying
between service providers, they arrived at the door of a solicitor
who was clearly well qualified to assist the parties. She
carried out sensible input sessions and fixed a date for mediation
earlier this month. Unfortunately, perhaps as a result of
rising tension between the parents, that session never took
place and accordingly the issue of mediation remains embryonic.
7. This court attaches great importance to the resolution
of continuing disputes by alternative dispute resolution.
Accordingly, the court operates an alternative dispute resolution
scheme of its own which provides mediation to parties to proceedings
within this court free of charge. It would be open to us today
to invite the parties to engage in the Court of Appeal scheme.
But I do not think that that would be sensible, given the
arrangements that have already been pursued to an advanced
stage in the locality. I am in no doubt at all that the parties
would be best served by renewing the arrangements recently
broken off with the local mediator. At this stage I would
like to record that Mr C, the father, despite his misgivings,
has unambiguously confirmed his ability to re-enter the local
mediation process.
8. The other development since permission was granted is that
a statement has been prepared on behalf of the mother, a long
statement with an even longer exhibit (as father points out
80 pages of A4), which was delivered to the court and to the
father yesterday afternoon. It is very much a lawyer's statement
and inevitably it reads to the father, and even to this court,
as a contentious document. So it would do nothing to reduce
the climate of dissension and mistrust were it to be admitted.
Its admission would also be unfair to the father, who has
had no opportunity to digest it and even less opportunity
to put his own side of the story.
9. So I would unhesitatingly refuse the admission of that
statement. It is enough for this court to know that the mother
continues to live in Sudbury and continues to pursue her application
for rehousing. It is enough for us to know that the children
are, broadly speaking, dividing their time between the two
homes in the manner that the judge directed. So it is necessary
for us only to consider what remains to be done this morning
to dispose of this appeal.
10. As I have indicated from the outset, I am very doubtful
as to whether the judge in the County Court has sufficiently
reflected in his approach the shift of emphasis signalled
by the decision of this court in D v D. There is no doubt
at all that there is a need for courts of trial to recognise
that there may well be cases that are better suited by a joint
residence order than by residence orders to one parent alone.
Where there is a proximity of homes and a relatively fluid
passage of the children between those two homes, the judicial
convention that the welfare of the children demanded a choice
between one parent or the other as a guardian of the residence
order in order to promote the welfare of the children no longer
runs as it used to run. I am in no doubt at all that orders
made in the courts of trial should above all reflect the realities.
11. Mr Jubb has conceded that the essential differences that
would be achieved by his client were she the holder of a joint
residence order are not necessarily easy to define. Of course
her parental responsibility is plain, whichever form of order
is adopted. But Mr Jubb points out that the making of a joint
residence order would confirm in her equal authority vis-à-vis
the world. That might have practical implications, particularly,
for instance, in relation to the Child Benefit Agency and
to the drawing of child benefit which heretofore has inevitably
been drawn by the father alone.
12. He also points to the fact that the conferring of a joint
residence order is an acknowledgement of the equal competence
of the parents, and thus buttresses the mother's sense of
well-being and her sense of self-esteem as a parent.
13. More legalistically, the court in D v D, in the judgment
of the President at page 503, defined that a shared order:
“Brings with it certain other benefits (including the
right to remove the child from accommodation provided by a
local authority under section 20) and removes any impression
that one parent is good and responsible whereas the other
parent is not.”
14. So what was it that led the judge to make the order which
he did? At page 13 of his judgment he recorded the words of
the children and family reporter thus:
“The practicality of what the parents had now agreed,
was really shared residence, whatever the Order of the Court.”
15. That, in my opinion, should have given the judge the clearest
guide to the resolution of the issue before him. He reasoned
himself quite fully between pages 23 and 26 of his judgment.
He pointed to the fact that the mother's arrival in Sudbury
was very recent and might never take firm root. He pointed
to the fact that there was an absence of harmonious history
between the parents, and finally he said:
“I am concerned that if I were to make a Shared Residence
Order it might, psychologically, give some sort of unbalance
to the relationship between the children and the parents.”
16. I view the case in a very different light. I think that
here the judge should have given the greatest weight to ensuring
that the order duly reflected the realities, unless there
were some counterbalancing welfare consideration that prevented
that sensible outcome. Here I do not think that there was.
In so far as he had anxiety about the recent arrival of the
mother on the scene, the passage of the intervening three
or four months allows us to view that factor more robustly.
17. I would like, finally, to pay tribute to the manner in
which the father has conducted his case in this court. He
can no longer afford legal representation. He has prepared
for us a statement in which he has quite rightly concentrated
on the unacceptable endeavour of the appellant to introduce
contentious evidence at a late stage. He has made the valid
point that neither of them can really afford continuing litigation,
and that section 91(14) only operates to ensure that neither
goes to the court without good reason.
18. In relation to the sharing of the residence order, in
relation of course only to S, he has in the end, with good
grace and to his great credit, said that he could live with
that conclusion. I think it is the proper conclusion. It has
the advantage of disposing of these proceedings in this court.
Hopefully there will be no need of further litigation between
these two parents. Hopefully they will find that the resolution
of any continuing or future areas of dispute between them
can be more successfully and more cheaply managed by the process
of mediation, than by reopening the adversarial proceedings
in the County Court.
19. I would, in conclusion for those reasons, propose to allow
the appeal only to the extent of varying the order in the
court below to provide that in respect of S alone his residence
should be shared between the parents, on the basis that he
will divide his time between the two homes in accordance with
the pattern that is recorded in the current contact order.
20. MR JUSTICE FERRIS: I agree.
21. Having regard to the considerable measure of agreement
which existed at the time of the hearing before the judge
and the principles stated in D v D, I think the right order
for him to make in respect of S would have been a shared residence
order. Such hesitation as I have felt on the hearing of this
appeal arises only because there appear to be continuing difficulties
in working out the very sensible arrangements which the parties
then agreed, and I wondered at one stage whether it would
be better to leave the order which the judge did make in place
pending the outcome of the mediation which it seems to be
agreed should now take place. In the end, however, I think
that the right order to make is the one proposed by my Lord,
namely to allow the appeal to the extent of making a shared
residence order now.
22. As to the future, the best hope lies in mediation and,
like my Lord, I am very glad to hear that the father is prepared
to go along with mediation. I am sure that one of the matters
which the mediator will address is the father's misgivings
that whatever may come out of the mediation may be ignored
by the mother. But I have no doubt that if agreement can be
reached, a mediator has a better chance of bringing it about
than confrontational hearings in court.
23. For that reason, it seems to be desirable to leave in
place the order under section 91(14). I would therefore make
the order proposed by my Lord.
ORDER: Appeal allowed to the extent of making a shared residence
order; detailed assessment of the Appellant's Community Legal
Services Funding certificate.
(Order not part of approved judgment)
|
