A (Children)

A shared residence order must reflect the child’s actual living arrangements and welfare needs. It should not be used merely to express the equal status of parents, since parents already share parental responsibility under the Children Act 1989. Such an order may be made where it serves the child’s best interests, but it is inappropriate where a child is living with one parent and is unlikely to visit the other for the foreseeable future. An appellate court should be slow to interfere with a trial judge’s welfare assessment, particularly where the decision depends on evidence of parental attitudes and the children’s feelings.

The father sought permission to appeal against an order made by Mr Recorder Morris in the Willesden County Court on 31 July 2001 concerning three children. The recorder made a shared residence order for all three children, gave care and control of the eldest child to the father and of the two younger children to the mother, and provided for contact between the children and each parent.

The father challenged both the decision to separate the children between the parents and the form of the order. The central issues were whether the recorder had been entitled to exercise his welfare discretion in that way and whether the shared residence and care-and-control provisions properly reflected the statutory scheme.

1. Permission and disposition. Permission to appeal was granted. The appeal was allowed in part. The shared residence order was set aside and replaced by residence orders reflecting the children’s actual arrangements.
2. Welfare discretion. Despite the brevity of the recorder’s judgment, the Court of Appeal could not conclude that his decision on the substance was plainly wrong. The appeal court was not a substitute for the trial judge, who had seen and heard the parents give evidence and was better placed to assess their feelings and qualities. The more difficult and finely balanced the welfare decision, the less readily an appellate court should interfere.
3. Shared residence. D v D Shared Residence Order [2001] 1 FLR 495 established that shared residence orders were not necessarily exceptional and should be made where they served the children’s best interests. However, the order had to reflect the reality of the children’s lives.
4. Statutory meaning. Section 8(1) of the Children Act 1989 defines a residence order as an order settling the arrangements for the person with whom a child is to live. Section 11(4) permits a residence order in favour of persons living in different households to specify the periods during which the child is to live in each household. These provisions did not justify a shared residence order for a child who was not living with one parent and was unlikely to visit that parent for the foreseeable future.
5. The shared residence order for the eldest child was therefore inappropriate. It was replaced by an order that he live with his father and have contact with his mother. The shared residence order for the two girls was also set aside because their arrangements had not yet developed into a settled pattern warranting such an order. They were to live with their mother and have contact with their father and brother under the existing terms.

Costs were subject to detailed public funding assessment.

• Willesden County Court: Mr Recorder Morris made orders on 31 July 2001 providing for shared residence of the three children, with care and control divided between the parents and structured contact.
• Court of Appeal (Civil Division): Permission to appeal was granted and the appeal was allowed in part. The shared residence orders were replaced with residence orders reflecting the children’s actual living arrangements.