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(Court of Appeal; Thorpe, Scott-Baker, Lloyd LJJ; 19 April 2005)  1 FLR 491
The mother and father had separated and agreed for shared care of the children aged 10 and 8. The children spent five days with their mother and then five days with their father and this pattern repeated. The proceedings developed into cross-applications for residence and the CAFCASS officer concluded that a residence order should be made in favour of the mother. The CAFCASS officer had mentioned geographical dislocation, lack of co-operation between the parents and schooling amongst other considerations. The judge made a residence order in favour of the mother and said the father should have generous contact with the children. The contact order imposed by the judge at a later date provided less contact than the draft consent order prepared by the mother's solicitor. The father appealed. Thorpe LJ said that as the case had stood before the judge, shared care was the arrangement that had been implemented since the previous December. It was the arrangement that the children strongly favoured and was the father's alternative case. It was therefore incumbent upon the judge to deal with that as the first option for the court and to either explain its adoption or rejection. The judge misdirected himself on the issue of a shared residence order. The judge seemingly refers to the significant shift in case law over the course of the last ten years, but does not seem to have understood the pace or direction of that movement. The Court of Appeal has recently confirmed the approach taken by Wall J in A v A (Shared Residence)  1 FLR 1195 that a harmonious relationship between the parents is not a prerequisite for a shared care order. Indeed, the presence of a harmonious relationship weighs against a shared residence order as a harmonious relationship between parents would fall within the no order principle emphasised by the Children Act 1989, s 1(5). For the judge simply to dismiss what was an important option on the basis that there is potential for continuing emotional conflict between the parents is not good enough. The fact that the judge adopted that approach at a very early stage suggests a closed mind to what was a very serious option. It was not enough for the judge to simply mention the children's wishes. The wishes were an important ingredient to be weighed in the balance. Children have a right to participate in private law proceedings and in this instance that participation had been afforded through the investigations of the CAFCASS officer. What emerged from the investigations warranted careful judicial consideration. Thorpe LJ said he recognised the father's right to a fair trial and his right to a judgment that is correctly directed on issues of law and principle. Against that it was clearly open to the judge to reject the shared care option on the basis of practicalities that had been recognised by the CAFCASS officer in his report even if he did not support them strongly in his oral evidence. The judge, had he arrived at a legitimate foundation for rejecting the shared residence order, clearly had to choose between the parents. The basis of his choice is difficult to criticise on the basis of discretion and is liable to be replicated on any retrial. Thorpe LJ came to the conclusion that looking to the welfare of the children, that it would risk more to their current security to initiate further litigation. That would be disproportionate to the father's entitlement to a well-directed judgment. The extension of time was granted as well as permission to appeal. The subsequent appeal was dismissed on the ground that although misdirection is demonstrated, in the exercise of discretion Thorpe LJ did not think it would be right to order a retrial.
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