D v D (Shared Residence Order) [2001] 1 FLR 495

In 2000 a 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 she 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.

D v D (SHARED RESIDENCE ORDER) [2001] 1 FLR 495
[2001] 1 FLR 495
Court : Court of Appeal
Dame Elizabeth Butler-Sloss P and Hale LJ
Date : 20 November 2000

Catchwords Residence - Shared residence order - Whether exceptional
circumstances required - Whether positive benefit required

Head note. 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
Counsel : 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] 1 FLR 496

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] 1 FLR 497
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,
incidentally, 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] 1 FLR 498
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] 1 FLR 499
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] 1 FLR 500
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] 1 FLR 501
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] 1 FLR 502
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] 1 FLR 503
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] 1 FLR 504

(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