M (Children)

In children residence disputes, the court’s overriding obligation is to promote welfare. The children’s wishes and feelings must be considered, but they do not require a shared or joint residence order where the order would worsen parental conflict or otherwise harm welfare. Appellate courts should respect trial judges’ findings on credibility, personality and likely impact on family dynamics. A judge may propose ancillary orders on the court’s own initiative, but the parties must have a proper opportunity to address them. Where submissions were invited and no adjournment was sought, the absence of a further adjournment does not undermine the order.

The father applied to the High Court for variation of an existing residence order in favour of the mother of his two children. The application included a request for residence or shared residence, despite evidence that the children wished to divide their time equally between their parents.

Mr Justice Johnson rejected the application, made reciprocal orders regulating contact between the parents, continued an order under section 91(14), rejected a costs application against the Official Solicitor, and made protective directions concerning disputed legal-aid costs. The father sought permission to appeal on welfare, procedural fairness, costs and legal-aid grounds.

Application dismissed. Lord Justice Thorpe found no arguable basis for interfering with the first-instance decision.

1. The court’s greater obligation was to promote the children’s welfare. Although the children’s wishes and feelings were important, they did not determine the legal status or order to be made. The judge was entitled to conclude that shared residence, despite its apparent advantages, would increase tension because of the father’s manipulative and controlling approach.
2. The findings concerning the father’s conduct, the credibility of the parents and the likely effect of an order on family life were matters essentially for the trial judge. The judge had explained decisively why the seemingly appropriate order would conflict with the children’s welfare. There was no proper basis for appellate intervention.
3. Where a judge proposes orders not formally sought by either party, the parties should have a proper opportunity to consider and address them. On the transcript, the father had been invited to make submissions, did not oppose reciprocal restrictions on harassment, attendance and telephone contact, and did not seek an adjournment. The judge therefore was not to be criticised for making the orders without granting a further adjournment.
4. The continuation of the section 91(14) order was a discretionary decision made after submissions, and the father had not sought time to consider the proposal. The costs application against the Official Solicitor was difficult to justify. The disputed legal-aid issue was properly left for investigation by the Commission, while enforcement of the costs order was stayed. The application for permission to appeal was dismissed, and a transcript was directed to be supplied to the father at public expense.

1. Court of Appeal (Civil Division): on 9 July 2001, permission to appeal was dismissed. The court found no substance in any of the father’s grounds.
2. High Court of Justice, Family Division: Mr Justice Johnson, on 2 and 3 April 2001, rejected the father’s application to vary the residence arrangements, made ancillary orders, continued the section 91(14) order, rejected the costs application against the Official Solicitor, and made directions concerning disputed legal-aid costs.