C (Children)

When exercising the discretion under section 33(6) of the Family Law Act 1996, the court must give proper regard to the parties’ materially different housing circumstances and to the practical burden imposed by the proposed arrangement. A judgment may warrant permission to appeal where it appears not to have addressed a serious housing difficulty or a realistic, less onerous alternative. The relative availability of accommodation, employment and health may be relevant to that assessment.

The father sought permission to appeal from an order made by His Honour Judge Atkins in the Croydon County Court. The order continued an arrangement under which the mother and father alternated occupation of the family home around the mother’s police shifts, although alternative accommodation for the mother had not been secured. The father argued that the judge had failed properly to consider the factors in section 33(6) of the Family Law Act 1996, particularly the contrast between the mother’s access to employment, good health and accommodation with her parents, and his unemployment, ill-health and lack of alternative accommodation. The central issue was whether the apparent failure to address those matters justified permission to appeal.

Application granted. Ward LJ granted permission to appeal and directed that the appeal be listed before two Lord Justices, with an estimated hearing time of one and a half hours.

1. The exercise under section 33(6) of the Family Law Act 1996 was discretionary. Permission was nevertheless justified because, on the face of the judgment, the lower court appeared not to have given sufficient regard to the father’s housing difficulties and to the practical problems created by requiring him to move out for four or five days during each of the mother’s work shifts.
2. The parties’ positions were materially different. The mother had employment, good health and access to an alternative home with her parents. The father was unemployed, in ill-health and unable to secure alternative accommodation; he had been sleeping in his car.
3. The lower court had considered two alternatives but appeared not to have addressed the possibility that the father should remain in the family home for most of the time and move out only for the two days when he could stay with family or friends. That omission was sufficient to make the proposed appeal arguable.
4. The order granting permission required the father urgently to obtain an approved transcript of the lower court’s judgment and, if necessary, the evidence.

1. Court of Appeal (Civil Division): On 28 November 2007, Ward LJ granted the father permission to appeal and directed that the appeal be heard by two Lord Justices. The decision is reported at [2007] EWCA Civ 1526.
2. Croydon County Court: His Honour Judge Atkins continued the alternating occupation arrangement on 19 October 2007. Earlier directions had been made by District Judge Mills and His Honour Judge Barnett.