A (Children), Re

Residence orders should reflect the practical reality of a child’s living arrangements. Where homes are proximate and the child moves relatively fluidly between them, the court should consider a shared residence order rather than treating sole residence with one parent as the normal solution. The decisive consideration remains the child’s welfare. A shared residence order is appropriate unless a counterbalancing welfare consideration makes it unsuitable. Continuing parental disagreement does not, by itself, prevent such an order. A restriction under section 91(14) may remain appropriate where it is intended to discourage unnecessary further litigation.

The parents agreed arrangements under which their two children divided their time between both homes after the mother moved from London to Sudbury. The Ipswich County Court made a sole residence order in favour of the father for the younger child, S, with contact to the mother, and imposed a restriction under section 91(14). The mother appealed, contending that the order should reflect the practical reality of shared care. Permission to appeal was granted by Hale LJ, who referred to D v D [2001] 1 FLR 495, and encouraged mediation. The central issue was whether S’s arrangements should be recorded by a shared residence order.

1. Appeal allowed in part. The order was varied so that S’s residence was shared between the parents, in accordance with the existing pattern of time spent in each home. The appeal did not concern the residence arrangements for C.
2. The Court of Appeal held that trial courts must give substantial weight to orders reflecting practical reality. Where there is proximity between the homes and a relatively fluid passage of the children between them, the former convention that welfare generally required selection of one parent as the residence-order holder no longer applies.
3. The relevant question was whether a shared residence order better reflected the arrangements, subject to any counterbalancing welfare consideration. The judge had identified the recent nature of the mother’s move, the parents’ lack of harmonious history and a possible psychological imbalance, but those concerns did not justify departing from the practical arrangements already agreed and implemented.
4. A shared residence order may also acknowledge the parents’ equal competence and authority and avoid an implication that one parent is responsible while the other is not. The court referred to the reasoning in D v D [2001] 1 FLR 495 at page 503.
5. The restriction under section 91(14) was left in place. The court considered mediation the preferable means of resolving future disputes, while recognising that the statutory restriction was directed at preventing applications without good reason.
6. The mother’s late and contentious statement was refused admission because the father had insufficient opportunity to consider it and answer it. The appellant’s Community Legal Services Funding certificate was directed to detailed assessment.

• Court of Appeal (Civil Division): Appeal allowed to the extent of substituting a shared residence order for S and otherwise varying the County Court order.
• Ipswich County Court: On 7 March 2002, His Honour Judge Thompson made a sole residence order in favour of the father for S, with contact to the mother, and imposed a restriction under section 91(14).