D v D

A shared residence order under the Children Act 1989 is a practical order recording where a child lives. It does not require exceptional circumstances or an equal division of time between parents. The governing question is whether the order serves the child’s welfare on the particular facts.

It may properly be made where settled arrangements mean that the child has a home with each parent and spends substantial time in each household. The order may recognise that reality and reduce parental conflict. A requirement to demonstrate a positive benefit is not a separate statutory condition, although such benefit may support the welfare assessment.

Following the parents’ separation, their three daughters lived mainly with their mother but had long-established and substantial staying contact with their father. The father spent about 140 days a year caring for them. The arrangements had generated repeated disputes between the parents.

On 1 June 2000, HHJ Connor at Watford County Court made a shared residence order. He found that the children were in reality living with both parents and that the order could reduce conflict over the father’s status and access to information. The mother appealed, contending that shared residence required exceptional circumstances or proved positive benefit.

She also sought permission to appeal against an order of 11 October 2000 dismissing her application for supervised or suspended contact after the father returned the children late from Kenya and did not promptly notify her. The central issue was whether a shared residence order was appropriate for an established, unequal but substantial pattern of care in two households.

Decision

1. Appeal dismissed. Lady Justice Hale gave the principal judgment, with which the President agreed. The Court upheld the shared residence order and disposed of the mother’s further application by making no order after the father undertook not to enforce the earlier costs order.
2. A residence order under sections 8(1) and 11(4) of the Children Act 1989 concerns the practical arrangements for where a child lives. It may name two parents who live apart and specify the periods spent in their respective households. It is not an allocation of parental rights, and the time need not be shared equally.
3. The Court rejected the restrictive gloss drawn from Riley v Riley [1986] 2 FLR 429 and the exceptional-circumstances language in Re H (A Minor) (Shared Residence) [1994] 1 FLR 717. The statutory welfare inquiry governs. The President added that, although a shared residence order is not the standard order, appellate guidance must not inhibit a first-instance judge from exercising the statutory discretion on the individual facts.
4. A v A (Minors) (Shared Residence Order) [1994] 1 FLR 669 properly indicated that settled and substantial arrangements with both parents can support a shared residence order. The President expressed doubt that a positive benefit must be separately demonstrated. The decisive question was whether the order was in the children’s interests under section 1.
5. These children had settled homes with both parents, coped well with the arrangements, and had maintained strong relationships with each parent. The order accurately reflected that reality and could lessen conflict. The father’s late return from Kenya and failure to notify the mother were irresponsible and unkind, but did not provide a sufficient ground to suspend or supervise contact. The appeal was dismissed with no order as to the parties’ costs, subject to legal aid assessment.

• Court of Appeal (Civil Division): The mother’s appeal against the shared residence order was dismissed in [2000] EWCA Civ 3009. Her further application concerning supervised or suspended contact was disposed of by no order after the father undertook not to enforce the earlier costs order.
• Watford County Court (HHJ Connor): On 1 June 2000, the judge made a shared residence order defining the children’s time with each parent. On 11 October 2000, he dismissed the mother’s application for supervised or suspended contact and ordered her to pay the father’s costs of that hearing.