K (A Child)

A shared residence order does not require a child’s time to be divided equally between the parents. Shared residence and contact are distinct issues: making a shared residence order does not necessarily require any change to the existing time arrangements. The order should not be treated as conferring superior status on either parent. Where a lower court may have proceeded on the mistaken basis that equal time is required, the issue may constitute an important and highly arguable point warranting an oral permission hearing.

The father applied in person for permission to appeal against an order made by His Honour Judge Bromilow in the Taunton County Court. The judge had heard an appeal from District Judge Smith, who had refused a joint or shared residence order concerning the parties’ child and had refused to vary the existing contact arrangements.

The county court judge heard no oral evidence and concluded that the district judge had properly exercised the available discretion. The Court of Appeal considered whether the lower courts had wrongly treated shared residence as dependent on an equal division of the child’s time, and whether the shared residence issue was distinct from the request to vary contact.

1. Application adjourned. The Court of Appeal directed that the application for permission to appeal should be listed for oral hearing, with the appeal to follow.
2. The court considered that the district judge may have proceeded on the mistaken understanding that a shared residence order is available only where the child spends equal time with each parent. That approach would be incorrect. The existing division of time, understood to be approximately 60:40 in the mother’s favour, did not itself prevent consideration of a shared residence order.
3. The court treated shared residence and contact as separate issues. The father might succeed in obtaining a shared residence order without succeeding in his application to increase or otherwise vary the time spent with him.
4. A shared residence order should not be perceived as giving one parent a status superior to the other. The court stressed the continuing importance of the mother’s role in the child’s life and the need for the parents to co-operate in the child’s future.
5. The court did not finally determine whether a shared residence order should be made or whether the contact arrangements should be varied. It concluded only that the issues were sufficiently important and arguable to require an oral hearing.

• Court of Appeal (Civil Division): Adjourned the father’s application for permission to appeal and listed it for oral hearing, with appeal to follow.
• Taunton County Court: His Honour Judge Bromilow upheld the exercise of discretion by the district judge and declined to interfere.
• Taunton County Court: District Judge Smith refused a joint or shared residence order and refused to vary the existing contact arrangements.