Pengelly v Enright-Redding

A shared residence order does not automatically follow because a child has two homes and spends broadly equal time with each parent. The court must exercise its welfare discretion on the particular facts.

However, where the arrangements have long operated successfully and accurately amount to two homes, good reasons are required to refuse an order which reflects that reality. Shared residence confirms the parents’ equal legal status and joint responsibilities. Day-to-day decisions rest with the parent caring for the child at the time; important decisions should be made jointly.

The separated parents’ six-year-old child spent about 45 per cent of her time with her father under arrangements made following a residence order in favour of the mother. The father sought a shared residence order, equal division of the child’s time, and an extension of his contact.

HHJ Mackintosh, sitting in Exeter County Court, declined a further increase in the father’s time and refused shared residence. He was concerned that the order might enable the father to control the mother and considered that the mother should make the final decision in the event of disagreement.

The father appealed. The central issues were whether the judge had erred in refusing shared residence and whether he should have increased the father’s share of the child’s time.

1. Appeal allowed in part. The Court substituted a shared residence order for the mother’s sole residence order. It upheld the refusal to make a further immediate increase in the father’s time.

2. The refusal of further time was within the judge’s discretion. The previous increase was recent, and the child was doing well under the existing arrangements. A cautious decision not to alter the rota again after four months was permissible.

3. Shared residence remained a discretionary welfare decision. It did not follow automatically from two homes or from an approximately equal division of time. Nevertheless, the child had long lived successfully in two homes and spent nearly half her time with the father. On those facts, a shared residence order accurately reflected the reality of her life, and good reasons were required to refuse it.

4. The judge’s stated concerns about control and instability provided no adequate reason. There was no evidence that either parent interfered with the other’s exercise of parental responsibility while the child was in that parent’s care. The father already had parental responsibility and had exercised it responsibly.

5. Applying the principle stated in A v A [2004] 1 FLR 1195, the parent caring for the child makes day-to-day decisions. Important decisions should be made jointly. The mother was not entitled to a final decision merely because she held the original sole residence order. Communication difficulties required attention, including through mediation, but did not on these facts justify refusing shared residence.

• Court of Appeal (Civil Division): allowed the appeal in part and substituted a shared residence order: [2005] EWCA Civ 1639.

• Exeter County Court (HHJ Mackintosh): declined a further increase in the father’s time and refused a shared residence order, leaving the residence order in favour of the mother in place.