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03 MAR 2009

RESIDENCE: Re F (Shared Residence) [2009] EWCA Civ 313

(Court of Appeal; Ward, Longmore and Moore-Bick LJJ; 3 March 2009)

The parents separated for a period of about 18 months when the elder child was about 2 years old, and the younger child was less than a year old. The judge found that during this period the children had lived with the father, with only occasional contact to the mother. At the time, the mother, who was much younger than the father, had been undergoing a difficult period and had been abusing drugs and alcohol. The parents were then reconciled for a further 3 years. When they finally separated, the mother and the children moved out of the family home, going some distance away to live near the maternal grandmother. The father issued an application for residence of the children only a few months later, but it did not come to trial until the children had been living with the mother in their new home for over 12 months. The judge rejected the mother's allegation that there had been domestic violence by the father. After this finding had been made the Cafcass officer recommended shared residence, on the basis that the children, now 7 and 6, would be based with the father at the former matrimonial home, where they could resume attendance at their old school. The judge accepted that the mother had reformed and no longer had a problem with drugs or alcohol; he noted that the children would be well looked after and would thrive in either household. However, he rejected the mother's status quo argument, making an order for shared residence on the basis of the Cafcass officer's recommendations. The mother appealed.

Dismissing the appeal, the court considered the essential question to be whether the judge had adequately explained a departure from the settled position of the children with the mother. The judge's reason for ordering a change of primary carer was that it was in the children's best interests to return to their original home. While the decision the judge had reached was not necessarily the one the court would have reached, that was not sufficient reason to overturn his decision; the judge's reasons had been adequate.

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