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Law - D v D (SHARED RESIDENCE
ORDER)
Court of Appeal
The parents had three children. The marriage broke down in
1995 and a pattern was quickly established whereby the children
spent substantial periods of time with each parent. However,
the arrangements were subject to a high degree of animosity
between the parents, and frequent legal proceedings to sort
out their details. In 2000, the father applied for a 'joint'
(ie shared) residence order, arguing that he was being treated
as a second-class parent by authorities with whom he had to
deal regarding the provision of information etc about the
children. The mother sought a change in the contact pattern.
The trial judge accepted the father's case and made a shared
residence order. During the summer, problems arose over the
children's return to the mother after a holiday abroad and
the mother applied for an order that contact be supervised
or suspended. The judge dismissed the application and ordered
her to pay the costs of the hearing. The mother appealed.
Held - dismissing the appeal but making no order on the mother's
application to suspend the contact -
(1) Contrary to earlier case law, it is not necessary to show
that exceptional circumstances exist before a shared residence
order may be granted. Nor is it probably necessary to show
a positive benefit to the child. What is required is to demonstrate
that the order is in the interest of the child in accordance
with the requirements of s 1 of the Children Act 1989.
(2) While guidance from the Court of Appeal should be valuable
to first instance judges in setting out the principles to
be followed, it should not inhibit them from making the right
decision on the individual facts of each case, where the judge
exercises his discretion and decides what is best for the
children in that particular case.
(3) The courts are reluctant to make a costs order in cases
about children unless one of the parents has behaved totally
unreasonably in bringing the proceedings. The father had wisely
undertaken not to enforce the costs order the judge had made
and the mother had accepted that the appropriate outcome was
to make no order on her application.
Statutory provisions considered
Children Act 1989, ss 1, 8(1), 11(4)
Cases referred to in judgment
A v A (Minors) (Shared Residence Order) [1994] 1 FLR 669,
CA
H (A Minor) (Shared Residence), Re [1994] 1 FLR 717, CA
Riley v Riley [1986] 2 FLR 429, CA
Christopher McCourt for the appellant
Alexander Thorpe for the respondent
DAME ELIZABETH BUTLER-SLOSS P:
(1) I will ask Hale LJ to give the first judgment.
[2001] 496
1 FLR D v D (CA) Hale LJ
HALE LJ:
(2) There are two matters before the court today. The first
is a mother's appeal against a shared residence order made
by His Honour Judge Connor in the Watford County Court on
1 June 2000. The judge himself gave permission to appeal on
26 June 2000. Technically an extension of time is required
but no doubt he would have granted that if asked and no prejudice
has been caused. For my part I would readily grant that extension.
(3) The second matter is the mother's application for permission
to appeal against an order of His Honour Judge Connor in the
Watford County Court on 11 October 2000 dismissing her application
that contact with the father be supervised or suspended and
ordering her to pay the father's costs of that day.
(4) The case concerns three girls, S, who was born 2 November
1987, and is now just 13; T, who was born on 15 June 1989,
and is now 11; and A, who was born on 9 June 1991, and is
now 9. The parents are both ethnically Gujerati and of the
Hindu religion. The father comes from Kenya, where he still
has family. The mother comes from Mumbai in India, where she
still has family. An arranged marriage took place in Mumbai
on 5 September 1986. The mother was living in India then,
but the father had been living in this country for some time
and the couple came to make their home here.
(5) The marriage broke down in the summer of 1995. There were
divorce proceedings. The pattern was established quite quickly,
of the children living with their mother but having very substantial
contact with their father. Even from August 1995 this was
weekly. As from February 1996 it was one weekday evening and
3 weekends in 5, half the school holidays, birthdays and religious
festivals, including a 3-week holiday in Kenya. As from June
1996 the pattern was established, in an order made by Ansell
J, that it was 3 weekends out of 4 with the father and the
rest of the time shared as before. Later, the father agreed
that there should be one shared weekend, so that it became
2 weekends with him, one with the mother and one shared and
that basic pattern seems to have continued. But there were
frequent returns to court to settle the precise schedules
each year, to ensure the release of passports so that they
could go to Kenya, to secure that the mother told the father
of the children's appointments at the eye hospital and to
resolve a dispute about the children's education.
(6) The current proceedings began with the father's application
on 16 February of this year to determine the contact schedule
for 2000/2001, and for what was called a 'joint' residence
order and a prohibited steps order prohibiting the mother
from causing anyone to withhold information about the children
from him.
(7) The hearing before His Honour Judge Connor began on 15
March 2000. It was part heard to 17 April 2000 when there
was no time for him to give judgment and so that was delivered
on 1 June 2000.
(8) There were three basic matters for him to determine. The
first was the summer holiday this year. The father wanted
to take the children to Kenya and had booked flights; the
mother wanted to take them to India to see their maternal
grandfather, who was in very poor health, and had also booked
flights.
(9) The judge found that the trip to India was in the children's
interests. It was the mother's turn to have the first choice
of dates and the father had not responded to an overture to
agree dates with the mother's solicitors, and
[2001] 497
1 FLR D v D (CA) Hale LJ
so he held in favour of the trip to India. There
has been no appeal against that, of course, but it has led
to a difficulty which prompted the second application before
us and so I must return to the events of the summer.
(10) The second issue was the general pattern of contact.
The mother now wanted the weekend time equally shared, that
is in each 4 weeks there should be one full weekend with each
parent, and in the intervening weekends one full day with
each parent. The judge found that there was no justification
to change the arrangements. These conformed to the basic pattern
which had been laid down by Ansell J in June 1996. He was
entitled to assume that there had been good reasons for such
a high level of contact, and given the animosity between the
parties, those arrangements had worked surprisingly well.
(11) The third matter was the question of a shared residence
order and/or a prohibited steps order. The children spent
some 140 days each year with their father, which he calculated
was 38% of their time. The father claimed to have experienced
difficulties with schools and the hospital in obtaining information
and to have felt like a second-class parent. The judge found
that there was an exceptionally high level of animosity between
the parents, despite the time that had elapsed since they
separated:
'That animosity is most obvious in the evidence
of [the mother] ... She is a person who very readily becomes
excited. In many respects, she was a terrible witness.'
(12) The father in his view presented 'as a
calm, thoughtful person, with his emotions very much more
under control'. Nevertheless, the judge held that the father
was at least as responsible as the mother 'for the state of
animosity that subsists between them.' And because the father
was more in control of his emotions he should do more 'to
lessen the tension between them', whereas, in fact, he stirred
up the mother unnecessarily:
'The sad fact is that it appears that neither
parent can put behind them their own personal feelings or
swallow their pride for the benefit of the children.'
(13) There was no evidence that the children
were yet seriously affected, but there was no guarantee that
that would continue. There was, incidently, no welfare report
in the case because Ansell J at an earlier hearing had decided
that it was not necessary.
(14) The judge considered the evidence of the difficulties
faced by the father in gaining information. He found that
that evidence was unsatisfactory because it came in the form
of letters from the school and the hospital rather than witness
statements. Nevertheless, he concluded that there had been
difficulties and that part of the problem arose from the fact
that one parent had a residence order and the other did not.
(15) He considered the cases of Re H (A Minor) (Shared Residence)
[1994] 1 FLR 717 and A v A (Minors) (Shared Residence Order)
[1994] 1 FLR 669 and, in particular, the observations of Butler-Sloss
LJ (as she then was) and to which I will return. He was somewhat
anxious as to whether he had to follow her words to the letter,
but considered that it was a matter for his discretion in
the individual case. He pointed out that the
[2001] 498
1 FLR D v D (CA) Hale LJ
general pattern of contact had been settled
now for some time; there was no evidence that the children
were having difficulty moving between their parents; there
was a substantial risk that the children would be harmed by
the continuing conflict. He was convinced that the mother
was using the sole residence order as a weapon in the war
with her ex-husband:
'... and that the making of a joint residence
order underlying the status of the parents as equally significant
in the lives of the children would be likely to diminish rather
than increase that conflict.'
(16) Hence, he made the shared residence order,
that is an order that the children should live with both of
their parents defining the time to be spent with the father
and providing that the rest was to be spent with the mother.
All of these arrangements, of course, were subject to a contrary
agreement between the parents for a court order.
(17) That order was made on 1 June 2000. Sadly, further conflict
arose over the summer. The evidence in relation to that is
limited. The children did, after all, go to Kenya with their
father. There were problems over the hand over. The mother
says that she took them to the car park to be collected, as
agreed, on 19 July 2000, but the father did not arrive. The
father's case, set out in a letter from his solicitors, was
that someone, without his authority, had changed the flights
to the following day, so that their departure was delayed.
Nevertheless, he did collect the children and they flew on
20 July 2000.
(18) There were then problems over the return. The order was
that the children had to be returned by 7 pm on the Saturday,
12 August 2000 and they were due to fly to India on the morning
of Monday, 14 August 2000. When they did not arrive at 7 pm
the mother contacted the police. In fact, the children had
flown back a day later and so they did not arrive in this
country until 7 pm on the Sunday morning. Nevertheless, the
father did not contact the mother to explain the situation
but took them to his home so that they could get some rest.
They were not returned until the Sunday evening, the mother,
by that stage, being in a state of very considerable anxiety.
(19) She, therefore, applied in September 2000 to supervise
or suspend the father's contact. That application was dismissed
by His Honour Judge Connor on 11 October 2000 and he took
the unusual step of ordering the mother to pay the costs of
that hearing.
(20) I turn first to the issue on the appeal. Mr McCourt,
who appears for the mother, has argued that the authorities
indicate that shared residence orders should only be made
either in exceptional circumstances or, at the very least,
where it can be demonstrated that they would show a positive
benefit for the children. In this particular case there were
no exceptional circumstances, no evidence of positive benefit
and thus, no reason to change the legal arrangements which
had been in place for some time. He also argues that access
to information was irrelevant or given too much weight because
the father already had parental responsibility and was entitled
to that information. Thus that, by itself, could not be regarded
as an exceptional circumstance or of positive benefit.
(21) In considering these arguments it may be helpful to go
back to basics. Before the Children Act 1989 there was a Court
of Appeal authority in Riley v Riley [1986] 2 FLR 429, to
the effect that a shared residence order, which
[2001] 499
1 FLR D v D (CA) Hale LJ
had been made and worked comparatively well
in that case for 5 years, should never have been made at all.
It is clear, as the court appreciated in the later cases,
that the intent of the Children Act 1989 was to change that
decision.
(22) The background to the Children Act 1989 provision lies
in the Law Commission's Working Paper No 96, published in
1986, on Custody, and the Law Commission's Report, Law Com
No 172, published in 1988, on Guardianship and Custody. If
I may summarise the basic principles proposed, the first was
that each parent with parental responsibility should retain
their equal and independent right, and their responsibility,
to have information and make appropriate decisions about their
children. If, of course, the parents were not living together
it might be necessary for the court to make orders about their
future, but those orders should deal with the practical arrangements
for where and how the children should be living rather than
assigning rights as between the parents.
(23) A cardinal feature was that when children are being looked
after by either parent that parent needs to be in a position
to take the decisions that have to be taken while the parent
is having their care; that is part of care and part of responsibility.
Parents should not be seeking to interfere with one another
in matters which are taking place while they do not have the
care of the children. They cannot, of course, take decisions
which are incompatible with a court order about the children.
But the object of the exercise should be to maintain flexible
and practical arrangements wherever possible.
(24) Then dealing with residence orders the Commission said
this at para 4.12 of Law Com 172:
'Apart from the effect on the other parent,
which has already been mentioned, the main difference between
a residence order and a custody order is that the new order
should be flexible enough to accommodate a much wider range
of situations. In some cases, the child may live with both
parents even though they do not share the same household.
It was never our intention to suggest that children should
share their time more or less equally between their parents.
Such arrangements will rarely be practicable, let alone for
the children's benefit. However, the evidence from the United
States is that where they are practicable they can work well
and we see no reason why they should be actively discouraged.
None of our respondents shared the view expressed in a recent
case [ Riley v Riley] that such an arrangement, which had
been working well for some years, should never have been made.
More commonly, however, the child will live with both parents
but spend more time with one than the other. Examples might
be where he spends term time with one and holidays with the
other, or two out of three holidays from boarding school with
one and the third with the other. It is a far more realistic
description of the responsibilities involved in that sort
of arrangement to make a residence order covering both parents
rather than a residence order for one and a contact order
for the other. Hence we recommend that where the child is
to live with two (or more) people who do not live together,
the order may specify the periods during which the child is
to live in each household. The specification may be general
rather than detailed and in some cases
[2001] 500
1 FLR D v D (CA) Hale LJ
may not be necessary at all.'
(25) It is for those reasons that s 8(1) of
the Children Act 1989 defines 'a residence order' as:
'... an order settling the arrangements to be
made as to the person with whom a child is to live ...'
(26) 'Person' of course includes 'persons' on
ordinary principles of statutory construction. It is, therefore,
an order about where the children are to live. Section 11(4)
of the 1989 Act specifically provides:
'Where a residence order is made in favour of
two or more persons who do not themselves all live together,
the order may specify the periods during which the child is
to live in the different households concerned.'
(27) Not long after the Children Act 1989 came
into force in October 1991 the matter came before the Court
of Appeal, on 1 December 1992, in Re H (A Minor) (Shared Residence)
[1994] 1 FLR 717, Purchas LJ said at 728:
'That such an order [which he referred to as
a joint residence order] is open to the court, as has been
said in the judgment of Cazalet J, is clear from the provisions
of s 11(4) of the Children Act 1989, as was indicated during
the debate on the Bill by the Lord Chancellor. But, at the
same time, it must be an order which would rarely be made
and would depend upon exceptional circumstances.'
(28) He went on to refer to the case of Riley
v Riley [1986] 2 FLR 429.
(29) The matter next came before the Court of Appeal on 3
February 1994, in A v A (Minors) (Shared Residence Order)
[1994] 1 FLR 669; Butler-Sloss LJ (as she then was) at 677
said this:
'Miss Moulder, representing the father, accepts
that the conventional order still is that there would be residence
to one parent with contact to the other parent. It must be
demonstrated that there is positive benefit to the child concerned
for a s 11(4) order to be made, and such positive benefit
must be demonstrated in the light of the s 1 checklist ...
The usual order that would be made in any case where it is
necessary to make an order is that there will be residence
to one parent and a contact order to the other parent. Consequently,
it will be unusual to make a shared residence order. But the
decision whether to make such a shared residence order is
always in the discretion of the judge on the special facts
of the individual case. [I suspect that when My Lady used
the word "special" she meant "particular".]
It is for him alone to make that decision. However, a shared
residence order would, in my view, be unlikely to be made
if there were concrete issues still arising between the parties
which had not been resolved, such as the amount of contact,
whether it should be staying or visiting contact or another
issue such as education,
[2001] 501
1 FLR D v D (CA) Hale LJ
which were muddying the waters and which were
creating difficulties between the parties which reflected
the way in which the children were moving from one parent
to the other in the contact period.'
(30) She went on to say (at 678):
'If a child, on the other hand, has a settled
home with one parent and substantial staying contact with
the other parent, which has been settled, long-standing and
working well, or if there are future plans for sharing the
time of the children between two parents where all the parties
agree and where there is no possibility of confusion in the
mind of the child as to where the child will be and the circumstances
of the child at any time, this may be, bearing in mind all
the other circumstances, a possible basis for a shared residence
order, if it can be demonstrated that there is a positive
benefit to the child.'
(31) It is quite clear that in those words my
Lady was moving matters on from any suggestion, which is not
in the legislation, that these orders require exceptional
circumstances. She was also recognising that it stands to
reason that if it has not yet been determined where the children
are to live, how much contact there is to be, or whether or
not there is to be staying contact with the parent with whom
they are not spending most of their time, then there could
not be a shared residence order, because that would be an
order that the children were to live with both parents.
(32) If, on the other hand, it is either planned or has turned
out that the children are spending substantial amounts of
their time with each of their parents then, as both the Law
Commission and my Lady indicated in the passages that I have
quoted it may be an entirely appropriate order to make. For
my part, I would not add any gloss on the legislative provisions,
which are always subject to the paramount consideration of
what is best for the children concerned.
(33) This case is one in which, as the judge said, the arrangements
have been settled for some considerable time. The children
are, in effect, living with both of their parents. They have
homes with each of them. They appear to be coping extremely
well with that. I accept entirely what we have been told by
the mother today, that she would never seek to turn the children
against their father, because she herself so loves her own
father that she could not possibly do that. It is greatly
to her credit that her children have been able to maintain
such a very strong and good relationship with both of their
parents. Of course, it is to the father's credit as well that
he has remained as dedicated to their interests as he has.
(34) In those circumstances it seems to me that there is indeed
a positive benefit to these children in those facts being
recognised in the order that the court makes. There is no
detriment or disrespect to either parent in that order. It
simply reflects the reality of these children's lives. It
was entirely appropriate for the judge to make it in this
case and neither party should feel that they have won or lost
as a result. I would, therefore, dismiss the appeal.
(35) As far as the application for permission to appeal is
concerned, we are hampered by the lack of clear evidence and
clear findings of fact in relation to the events of the summer.
On any view, to bring the children back into this country
later than the time indicated in the court order and then
not
[2001] 502
1 FLR D v D (CA) Hale LJ
to take positive steps to inform the mother
that the children were safely back and arrange for them to
come home to her ready for their trip to India the following
day, was irresponsible and unkind on the part of the father.
It amply bears out His Honour Judge Connor's observation that
the father is capable of behaving in a way that winds the
mother up. The mother, as the father perfectly well knew,
was liable to overreact in that situation and it may be that
the judge was right to characterise her reaction in going
to the police as an overreaction. That, it seems to me, is
not a matter upon which one can form a concluded view. One
can form a concluded view that those events came nowhere near
constituting a good ground for suspending or supervising contact.
(36) The father must understand that it is his responsibility
to adhere to the timetables set, and that if he does not do
so he must make sure that the mother knows what the position
is, and he must make appropriate arrangements to put things
right. If that can take place then, perhaps, the mother would
have no cause to overreact, in the way that she did in response
to the events of the summer, by making the application that
she did.
(37) Fortunately, the father now realises that it is very
rare indeed for the courts to make costs orders in cases about
children. The courts realise that parents love their children
and care about their children's welfare and when they bring
cases to court they generally are trying to secure their children's
best interests. For that reason the court is reluctant to
make a costs order unless one of the parents has behaved totally
unreasonably in bringing the proceedings. The father, recognising
that, has undertaken not to enforce the costs order made on
11 October 2000. The mother accepts that, in those circumstances,
the appropriate thing to do is to make no order on her application,
so that that matter is now at an end.
DAME ELIZABETH BUTLER-SLOSS P:
(38) I agree with the judgment of Hale LJ and I only add a
few words of my own because the judge trying the case was
potentially, though fortunately not in the event, inhibited
by some observations of mine which led him to believe that
he had to be particularly cautious in making a shared residence
order.
(39) The approach of the Court of Appeal in the decision of
Re H (A Minor) (Shared Residence) [1994] 1 FLR 717 was made,
as my Lady has already said, shortly after the implementation
of the new Children Act 1989. It looked back at an earlier
decision of the Court of Appeal in Riley v Riley [1986] 2
FLR 429 and, of course, a decision made under the old legislation.
With hindsight that decision of the Court of Appeal was unduly
restrictive. In A v A (Minors) (Shared Residence Order) [1994]
1 FLR 669, decided 18 months later, this court had a more
relaxed approach to the concepts of shared residence. Now
9 years later with far greater experience of the workings
of the Children Act 1989 it is necessary to underline the
importance of the flexibility of the Children Act 1989 in
s 8 orders and, consequentially, that the Court of Appeal
should not impose restrictions upon the wording of the statute
not actually found within the words of the section.
(40) Any application to change an existing order must be supported
by good reasons. A shared residence order is not the standard
order and it is helpful to look at the guidance of the Children
Act 1989 Guidance and
[2001] 503
1 FLR D v D (CA) Dame Elizabeth Butler-Sloss
Regulations, Vol 1, Court Orders (The Stationery
Office Books, 1991), para 2.2(8) at p 10 and I am taking it
for convenience from A v A (Minors) (Shared Residence Order)
[1994] 1 FLR 669, 674 in the judgment of Connell J. He set
out there a passage from the Guidance, a very helpful passage
and it says at 674E:
'"... it is not expected that it would
become a common form of order partly because most children
will still need the stability of a single home, and partly
because in the cases where shared care is appropriate there
is less likely to be a need for the court to make any order
at all. However, a shared care order has the advantage of
being more realistic in those cases where the child is to
spend considerable amounts of time with those parents, brings
with it certain other benefits (including the right to remove
the child from accommodation provided by a local authority
under s 20), and removes any impression that one parent is
good and responsible whereas the other parent is not."'
(41) I stand by what I said on 677 and 678,
save to say, as my Lady quite correctly said, the word is
not 'special' facts, I meant on the 'particular' facts of
the individual case. I am not certain that one does have to
demonstrate a positive benefit to make a shared residence
order. One does have to demonstrate that a shared residence
order is in the interest of a child in the accordance with
the requirements of s 1 of the Children Act 1989.
(42) The importance for a judge of first instance is that
the guidance that comes from the Court of Appeal, setting
out the principles to be followed, is, I hope, valuable for
first instance judges but, at the end of the day, it should
not inhibit the first instance judge from making the right
decision. The right decision is dependant upon the individual
facts of each case where the judge exercises his discretion
and decides what is best for the children in that particular
case.
(43) In my judgment this judge was clearly entitled to exercise
his discretion in the way he did. He took the view that it
was beneficial for the children and I see no reason to disagree
with him and, therefore, I too would dismiss this appeal.
I would only add this: I would like both these parents to
realise that neither of them has won today; that this is a
case in which the father must go away and make contact work,
in the sense that he has to obey court orders as to timings
and if, as my Lady says, in the words of wisdom that she expressed
today, he cannot obey it, he must use his telephone first
to apologise and second to explain. Now the mother must respond
to that and be more flexible in understanding that the strict
times cannot always be kept to.
(44) Communication is the art here and both of them are demonstrating
a woeful lack of use of communication. I would not like the
father to think that his returning the children on the Sunday,
when the order said the Saturday, and not letting the mother
know, was in any way reasonable, and I share the view of Hale
LJ that it was both irresponsible and unkind. But I am grateful
to the father for having recognised that in a children case
it is very unusual to make a costs order and, perhaps, also
to recognise with the help of his counsel, that to get rid
of such an order will get rid of a feeling of injustice by
the mother and may just make the future contact better.
[2001] 504
1 FLR D v D (CA) Dame Elizabeth Butler-Sloss
(45) What these two should do is to leave this
court and say we have an order that has run since 1996, let
us make it work. Why are we wasting time and money and a great
deal of emotional stress in going back to court? You have
a framework for your children; they love you both. Go away
and do not bother us anymore. It is time you got on with your
lives and your children's lives without using the courts.
(46) The appeal, therefore, is dismissed with no order as
to costs, save legal aid assessment. The application for permission
to appeal: there will be no order on the written undertaking
of the father not to pursue the order for costs of 11 October
2000.
Order accordingly.
Solicitors: P.W. Moody Solicitors for the appellant
S.J. Vickers & Co Solicitors for the respondent
PHILIPPA JOHNSON
Barrister
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