M (Children)

A child alleged to have abused siblings is not automatically entitled to separate representation. The issue is discretionary, and appellate interference with a refusal requires a clear legal basis or an improper exercise of discretion. A grave finding of abuse requires a reasoned analysis of the evidence for and against. Where siblings are to remain together under shared care, equality in the division of time between households is at least a starting point. An unexplained division favouring one parent may be set aside, and the appellate court may exercise the discretion afresh, giving proper weight to the children’s wishes and feelings.

After the separation of the parents, arrangements divided their three children between the parental homes. Following allegations that the eldest child, Ashleigh, had sexually interfered with two younger step-siblings, the father withheld the children and proceedings followed. The county court found the allegations proved, made a shared residence order, and provided for nine nights with the father and five nights with the mother in each fortnight. The mother appealed, challenging the adverse finding against Ashleigh and the division of time, particularly in relation to the youngest child. The central issues were whether the judge had properly dealt with Ashleigh’s lack of separate representation and whether the shared-care arrangement was a proper exercise of welfare discretion.

The court unanimously granted permission, allowed the appeal and varied the order below.

1. Separate representation. The application for Ashleigh to have separate representation was made during the trial. No clear case for such representation had been articulated at an earlier directions hearing. The refusal was a discretionary case-management decision, and there was no sufficient basis for appellate interference by reference to a general principle. The possible impact of the Human Rights Act 1999 might require fuller consideration in another case, but the issue was left open. The decision reported as Re: BJ was treated as a brief comparison rather than as determinative.
2. Finding of sexual interference. The judge’s grave finding against Ashleigh was unsustainable. He had not analysed the evidence for and against the allegation, including the differing accounts given by the boys, Ashleigh’s consistent denial and the closure of the social-services investigation. His later suggestion that the conduct amounted only to juvenile mutual physical exploration was also inconsistent with the adverse finding.
3. Division of time. The judge was right to regard the case as suitable for shared residence and to keep the children together. His unexplained division of nine nights to five in the father’s favour was, however, plainly flawed, particularly since it gave the mother less time than the rejected primary-care and contact proposal. Where shared care is selected and the children are to remain together, equality is at least a starting point. The children’s wishes and feelings required considerable weight, especially Kiera’s definite wish to live with her mother while spending time with her father. The Court of Appeal therefore exercised the discretion afresh and directed an equal division of time. The finding against Ashleigh was discharged; no amendment to the order concerning her was required.

• Court of Appeal (Civil Division) — In [2008] EWCA Civ 66, permission was granted, the appeal was allowed and the county court order was varied to provide for an equal division of the children’s time between the parents.
• Chichester County Court — HHJ Barratt QC made a shared residence order providing for nine nights with the father and five nights with the mother in each fourteen-day period.