H-D (Children), Re

In Children Act proceedings, the court’s paramount consideration is the welfare of the children. Its task is not confined to negotiating between the parties’ proposals or preserving the existing arrangement. The court must consider all available options and conduct the necessary balancing exercise. A shared residence order may be inappropriate where the parents lack a sufficient working relationship and the arrangement is likely to generate friction. An appellate court should not interfere unless the decision is plainly wrong or affected by an error of principle.

The parents had agreed to a shared residence arrangement for their two children after separating. The mother later considered moving away, prompting applications concerning residence, contact and the children’s schooling. She ultimately remained in the area, but the parents’ relationship remained acrimonious.

After a contested hearing, the Barnet County Court ordered that the children live with the mother, with defined contact to the father, and gave the mother control over their schooling and religious upbringing. The father sought permission to appeal, arguing that the judge had failed to balance the relevant factors, give sufficient weight to the existing arrangement and account for the effect of change.

1. Application refused. The court refused permission to appeal, with costs.
2. The welfare of the children is the paramount consideration. The court has a positive duty to consider all available options. It is not restricted to the alternatives proposed by the parties and is not required merely to negotiate a compromise between their positions.
3. The judge was entitled to conclude, on the evidence and his assessment of the parents, that the shared residence arrangement was unlikely to work satisfactorily. The parents’ personalities and lack of a sufficient working relationship meant that the arrangement was likely to produce excessive friction and uncertainty for the children.
4. There was no evidence that the judge had acted contrary to the court welfare officer’s evidence. Her report supported the conclusion that, if the mother remained locally, the children should remain in her care with regular, defined contact with their father.
5. The Court of Appeal could interfere only if the judge’s conclusions were plainly wrong or involved an error of principle. Neither was established.

• Barnet County Court: His Honour Judge Latham ordered that the children live with their mother, with defined contact to their father, and made specific issue orders concerning schooling and religious upbringing.
• Court of Appeal (Civil Division): Permission to appeal was refused with costs.