C (A Child)

A shared residence order is a substantive order settling where a child is to live. It requires the child to spend some time in each parent’s household and is inappropriate where the parent seeking it has scarcely seen the child.

Contact may properly be discharged where a parent refuses to use an existing order, since maintaining an order which the parent will not accept serves no practical purpose. A parental responsibility order must be made or discharged by reference to the child’s welfare. The court should be slow to discharge such an order, particularly because it is available in this context only to unmarried fathers, but genuine unwillingness to undertake parental responsibilities may justify reconsideration.

The father made repeated applications concerning contact with his young son. Earlier orders provided for limited contact and imposed restrictions under section 91(14) of the Children Act. The father declined to use the contact ordered and later applied for shared residence and increased contact.

The circuit judge refused shared residence, discharged the contact and parental responsibility orders, and made a further section 91(14) order. The father sought permission to appeal against each decision. The central issues were whether shared residence could be ordered without established contact, whether the existing contact order should remain in force, and whether the parental responsibility order could properly be discharged.

1. Shared residence. Permission to appeal was refused. A shared residence order remains a residence order. It settles the arrangements as to the person with whom the child is to live and is not merely a symbolic recognition of parental status. It cannot properly be made where the child is not spending time in each household. The judge was entitled to refuse the application where the father had declined to see the child for more than two years.

2. Contact. Permission to appeal against discharge of the existing contact order was refused. The father had made clear that he would not use the order because he considered it inadequate, despite having exhausted his opportunities to challenge it. There was no practical point in maintaining an order which he was unwilling to use for the benefit of his son.

3. Parental responsibility. Permission to appeal was granted on the discharge of the parental responsibility order. The governing criterion is the child’s welfare, including whether making or continuing an order is better than making or continuing none. The court should be slow to end such an order, particularly because parental responsibility orders in this context are available only to unmarried fathers and are independent of other orders concerning the child’s care and upbringing.

   Relevant considerations in making, and therefore discharging, a parental responsibility order include the attachment or relationship between child and parent, the parent’s commitment to the child, and the parent’s reasons for applying. The father’s alleged wilful refusal to undertake parental responsibilities might be analogous to inability to meet those responsibilities. The possibility that the circuit judge had erred on this issue justified permission to appeal.

4. Section 91(14) order and parties. Permission to appeal against the further section 91(14) order was refused. The order did not close the door to future applications and was a proper response to the admitted circumstances. The child was not made an independent party to the appeal.

The application to appeal against discharge of the parental responsibility order was allowed. The transcript was to be provided to each party at public expense.

• Southampton County Court: The circuit judge refused shared residence, discharged the contact and parental responsibility orders, and made a further order under section 91(14) of the Children Act.
• Court of Appeal (Civil Division): Permission to appeal was refused on shared residence, contact and the section 91(14) order, but allowed on the discharge of the parental responsibility order.