S (Children), Re

A shared residence order should reflect the children’s actual living arrangements. Exceptional circumstances are not required, but the court must decide whether the children will genuinely be living with both parents and whether the order serves their interests. A sole residence order does not give one parent unilateral control over major decisions where both parents have parental responsibility. Contact and protective orders may reinforce the other parent’s role without requiring a shared residence label. Article 8 does not require arrangements to be described in a way that departs from reality. An appellate court should not interfere with a discretionary family order unless there is a defect in the decision-making process or the decision is plainly wrong.

The father sought permission to appeal against orders made by the Canterbury County Court concerning residence, contact and major decisions affecting his two children. The lower court continued the children’s residence with the mother, granted the father substantial staying contact, and made a prohibited steps order preventing unilateral decisions about education and health.

The father challenged the refusal of a shared residence order. He relied on D v D (Shared Residence Order) [2001] 1 FLR 495, and invoked Articles 6, 8 and 14 of the Convention. The central issue was whether a shared residence order accurately reflected the children’s circumstances and was in their interests.

1. Permission refused. The proposed appeal had no realistic prospect of success. The judge’s decision was discretionary and could be challenged only for a fault in the decision-making process or because it was plainly wrong.
2. Shared residence. D v D (Shared Residence Order) [2001] 1 FLR 495 marked a broader approach to shared residence orders. Exceptional circumstances were no longer required. The relevant question remained whether the children were, in effect, living with both parents and whether such an order was in their interests.
3. The lower court was entitled to conclude that the optimum division of the children’s time did not mean that they would be living with both parents. A shared residence order would therefore give a false impression of the arrangements. For young children, being required to live in two homes under such an order could create perplexity and confusion, with a risk of emotional damage.
4. A sole residence order did not entitle the mother unilaterally to determine major issues concerning health, education or contact. The parents had equal parental responsibility. The prohibited steps order appropriately reinforced the father’s role, alongside extensive contact.
5. Article 8 did not require the court to describe the arrangements as shared residence where that description departed from reality. The orders, taken together, afforded proper respect to the family life of the father and children. The Article 6 complaints could not be examined closely without a transcript, and the Article 14 complaint did not alter the conclusion.
6. The order was: permission to appeal refused. The transcript was to be provided to both parties at public expense.

• Court of Appeal (Civil Division): Permission to appeal from orders made by the Canterbury County Court on 5 October 2001 was refused.
• Canterbury County Court: His Honour Judge Poulton continued residence with the mother, ordered substantial staying contact with the father, and made a prohibited steps order concerning education and health.