F (Children), Re

A shared residence order must reflect the reality of the homes in which children live, but it does not require an equal division of their time or regular alternation between homes. Substantial periods with each parent may suffice.

Considerable distance between the parents’ homes, including homes in England and Scotland, does not by itself preclude shared residence. The court must treat the children’s welfare as paramount and consider whether the order recognises two homes of equal importance or would instead cause confusion.

The father appealed against orders made by Her Honour Judge Bonvin on cross-applications concerning two children. The judge ordered shared residence, with the children spending weekdays principally with their mother and substantial weekends and holidays with their father. She permitted the arrangements to continue if the mother moved from Hampshire to Edinburgh, with foregone weekend contact transferred to school holidays.

The father contended that the judge’s findings required sole residence with him and that shared residence was inappropriate where the parents might live several hundred miles apart in different UK jurisdictions. The mother’s cross-appeal challenged the continued shared-residence framework following relocation, but she withdrew it during the hearing.

The central issues were whether the judge’s order fell within her discretion and whether distance or an unequal division of time made shared residence legally or practically inappropriate.

1. Appeal dismissed unanimously; cross-appeal withdrawn. Lord Justice Thorpe, with whom Mr Justice Wilson agreed, held that the county court judge had made an impeccable exercise of discretion in a finely balanced case. Her adverse findings about aspects of the mother’s conduct had properly been balanced against her history as the children’s main carer, the close and warm relationship she had established with them and the Children and Family Reporter’s support for residence with her.

2. A shared residence order must reflect the underlying reality of where children live. It need not divide their time equally. Mr Justice Wilson applied D v D (Shared Residence Order) [2001] 1 FLR 495, where shared residence was appropriate although the children spent only 38 per cent of the year with one parent. The idea that shared residence requires even or regular alternation between homes is erroneous.

3. Distance between the parents’ homes does not itself preclude shared residence. The proposed programme would give the children a home with their mother during school terms and a home with their father during half-terms and almost all school holidays. That was a sufficient practical reality to support the order, even if the mother lived in Edinburgh and the father remained in Hampshire.

4. The children’s welfare remained paramount. The court could consider whether defining two homes as places of residence would confuse the children or would beneficially recognise that each home had equal status and importance. The order concerned the children’s places of residence, rather than parental status, although its label could properly recognise the significance of both homes.

5. No permission was required for the children to move wholly or partly to Scotland. Section 13(1)(b) of the Children Act 1989 prohibits removal from the United Kingdom, not relocation within it.

6. A trial judge must make findings relevant and necessary to dispose of the issues. The judge need not lengthen a judgment by deciding every disputed matter. The arrangements and their continued shared-residence framework fell well within the judge’s discretion.

1. Court of Appeal (Civil Division): The father’s appeal was dismissed. The mother withdrew her cross-appeal. Permission to appeal to the House of Lords was refused.
2. Aldershot and Farnham County Court: Her Honour Judge Bonvin made a shared residence order on the parents’ cross-applications. The order accommodated the mother’s possible relocation to Edinburgh while preserving substantial periods of residence with the father.