A (A Child)

Under the Children Act 1989, a shared residence order is not confined to cases of equal care. It may reflect the practical and psychological reality of a child’s life, or confer parental responsibility on a non-parent, where that outcome serves the child’s welfare. Parental conflict does not automatically bar such an order. Biological parenthood is important, especially where primary care may be removed, but creates no presumption and does not displace the recognised role of a social and psychological parent. Relocation and parental responsibility are distinct questions, though a move may justify considering them together where it risks marginalising an important parent figure. Parental responsibility does not make a person the child’s father. A section 91(14) restriction requires careful, sparing use and an opportunity to address it.

The mother appealed against orders made by Recorder Adam concerning her child, H. The orders permitted her relocation to the South Coast, granted her former partner, Mr A, joint residence and parental responsibility, and regulated contact. They also restricted the introduction of H’s biological father and imposed a restriction under section 91(14) of the Children Act 1989.

Mr A had cared for H as a father figure from birth, although he was neither H’s biological father nor his stepfather. The mother remained H’s primary carer and challenged the shared residence and parental responsibility orders, the contact arrangements, the treatment of Mr A as a father figure, and the limited role given to H’s biological father. The central issues were whether the orders were welfare-based and legally appropriate.

Appeal and orders. The appeal was dismissed except that the order under section 91(14) of the Children Act 1989 was deleted. The description of Mr A as H’s father was also legally inaccurate and the order’s nomenclature required correction. Scott Baker LJ and Sir Robin Auld agreed with the President’s reasons; Scott Baker LJ expressed some doubt about the order but found no basis for substantive interference.

1. A shared residence order is not restricted to an equal division of the child’s time. Under section 11(4), it may reflect the practical reality of the child’s life or recognise the equal status and responsibilities of important parental figures. It may remain appropriate where one person is the primary carer, the homes are separated by distance, or the time is divided unevenly. Re H, D v D, Re F and A v A supported that approach.
2. A residence order is a legitimate route under section 12(2) to confer parental responsibility on a non-parent who cannot obtain it independently. That may include a step-parent, same-sex partner, or social and psychological parent. The order must be justified by the child’s welfare, including the risk that an important relationship will otherwise be marginalised. Parental conflict is not an automatic bar.
3. The relocation decision and the decision on shared residence and parental responsibility were legally distinct, but factually connected. The Recorder was entitled to find that the move, combined with the mother’s continuing refusal to recognise Mr A’s parental role, created a risk of marginalisation. The combined arrangement was therefore within the welfare-based discretion available to him.
4. Biological parenthood is an important welfare factor, but does not create a presumption or preferential position. The House of Lords decision in Re G was distinguishable because it concerned removal of children from their biological mother’s primary care. It did not prevent recognition of a beneficial social and psychological parent where primary care remained with the biological mother.
5. Parental responsibility confers legal rights, duties, powers and authority under section 3(1), but does not make its holder the biological, adoptive or stepfather of the child. The child should receive a clear, consistent and age-appropriate explanation of his paternity. The biological father was not excluded from making a future application.
6. An order under section 91(14) must be used carefully and sparingly. A judge contemplating such an order must give the parties an opportunity to address the issue. The Recorder’s own-motion order therefore could not stand.

• Court of Appeal (Civil Division): [2008] EWCA Civ 867. Appeal dismissed, subject to deletion of the section 91(14) restriction and correction of the order’s terminology.
• Recorder Adam: final judgment dated 14 August 2007 and order dated 11 January 2008. The mother was permitted to relocate; Mr A was granted joint residence and parental responsibility; and contact and other matters were regulated.