K (A Child)), Re

A shared residence order is not confined to cases in which a child divides time equally between two homes. The court must decide separately the optimum division of the child’s time and whether that arrangement should be expressed in a shared residence order. An appellate court will not disturb a welfare decision about the division of time where it lay within the trial judge’s discretion. A shared residence order may properly recognise a child’s equally secure foundation in both parents’ homes despite an unequal division of time. It gives neither parent greater control. The court should, however, be alert to an application motivated by a wish to disrupt the other parent’s role.

The father sought an equal division of his six-year-old son’s time between the parents and a shared residence order under the Children Act 1989. The existing arrangements gave him approximately 40% of the child’s time.

The district judge refused both requests. He treated equality of time as necessary to a shared residence order. On the father’s first appeal, the circuit judge upheld that decision. The father then sought permission for a second appeal.

The central issue was whether the proposed increase in time and the request for shared residence had to succeed or fail together, and whether a shared residence order was appropriate on the existing 40%/60% division.

Disposition

1. The court unanimously granted permission for a second appeal and allowed the appeal. It upheld the refusal to alter the existing division of the child’s time, but set aside the refusal of shared residence and made a shared residence order reflecting the existing arrangements.

2. The district judge had made an error of principle. A request for equal time and a request for shared residence raise distinct questions. The court must first determine the child’s optimum division of time by reference to welfare. It must then decide whether that division should be expressed in a shared residence order or a contact order. A shared residence order can serve the child’s interests although the division is unequal: see Re F (Shared Residence Order) [2003] EWCA Civ 592 and Re P (Shared Residence Order) [2005] EWCA Civ 1639.

3. The district judge had been entitled to conclude that an additional school-night stay would provide only slight benefit and would disrupt a routine working well for the child. That welfare assessment lay within his broad discretion, so appellate interference with it was not justified.

4. On the evidence, shared residence was nevertheless plainly appropriate. Both parents were devoted and capable carers. The order would recognise the child’s equally solid foundation in both homes, particularly given his likely need for substantial long-term support. The no-order principle in section 1(5) of the Children Act 1989 did not make the order unnecessary.

5. A shared residence order gives one parent no greater control over the child’s life than the other. The court should be alert to a parent seeking such an order to interfere with the other parent’s role. The father’s failure fully to acknowledge the mother’s contribution did not establish such a malign motivation and was insufficient to outweigh the welfare reasons for the order.

• Court of Appeal (Civil Division): Permission was granted and the father’s second appeal was allowed. The court upheld the refusal to equalise time but substituted a shared residence order: [2008] EWCA Civ 526.

• Taunton County Court: On 16 November 2007, His Honour Judge Bromilow dismissed the father’s appeal from the district judge.

• Yeovil County Court: On 5 June 2007, District Judge Smith dismissed the father’s application for equal time and shared residence.