R (Children)

A harmonious parental relationship is not a prerequisite for a shared residence order. Harmony may instead indicate that no order is required. A court considering shared residence must evaluate the arrangement on its merits and must not reject it merely because continuing emotional conflict is possible.

Children participating through a CAFCASS investigation have a right to proper consideration of their stated wishes. Those wishes must be carefully weighed rather than merely acknowledged. Nevertheless, an appellate court may decline to order a retrial despite material misdirections where renewed litigation would disproportionately endanger the children’s welfare and the security of an established arrangement.

Following their parents’ separation, two children lived alternately with each parent under an agreed five-day shared-care arrangement. Both parents later sought residence orders. The children consistently wished to continue living equally with each parent, but the CAFCASS officer recommended residence with the mother.

His Honour Judge Swanson rejected shared residence principally because the parents lacked an exceptionally good relationship. He made a sole residence order in the mother’s favour and subsequently determined the father’s contact. The father’s attempt to appeal was substantially delayed after Sheffield County Court wrongly accepted and processed an appellant’s notice intended for the Court of Appeal.

The central issues were whether the judge had misdirected himself about shared residence and the children’s wishes, and whether those errors required the order to be set aside and the matter retried after the children had lived under it for nearly a year.

1. Appeal dismissed unanimously. The court extended time and granted permission to appeal, but declined to order a retrial. Thorpe LJ delivered the judgment, with which Scott Baker and Lloyd LJJ agreed.

2. The judge’s approach to shared residence was unsupportable. The development of the case law had not been understood. Applying the approach in A v A (Shared Residence) [2004] 1 FLR 1195, a harmonious parental relationship is not a prerequisite for a shared residence order. Such harmony may instead point towards the no-order principle in section 1(5) of the Act.

3. The possibility of continuing emotional conflict did not justify dismissing shared residence at an early stage. It was a serious option because the arrangement was already operating, had benefited the children for six months and accorded with their strongly expressed wishes. The judge’s early rejection suggested that he had approached the option with a closed mind.

4. The judge also gave insufficient consideration and weight to the children’s wishes. Children have a right to participate in private-law proceedings. Here, that participation occurred through the CAFCASS officer’s investigation, and the resulting evidence required careful judicial consideration. Merely mentioning the wishes was inadequate.

5. Those misdirections did not make a retrial inevitable. Practical considerations could lawfully have supported rejection of shared residence. Once that option was rejected, the judge’s evidence-based choice between the parents was difficult to challenge and was likely to be repeated.

6. The children had lived with their mother under the order for nearly 12 months and had moved home and school. Their mother’s circumstances had also developed. Renewed litigation posed a greater risk to their present security than was justified by the father’s entitlement to a properly directed judgment. A retrial would therefore have been disproportionate when assessed against the children’s welfare.

1. Court of Appeal (Civil Division): In [2005] EWCA Civ 542, extended time, granted permission to appeal and unanimously dismissed the appeal. Although the County Court had materially misdirected itself, a retrial would have posed a disproportionate risk to the children’s security and welfare.

2. Sheffield County Court: His Honour Judge Swanson rejected the father’s alternative application for shared residence, made a sole residence order in favour of the mother and later determined the father’s contact. No citation is stated.