O (A Child)

A shared residence order is not governed by a mathematical division of a child’s time. Broader welfare considerations may justify such an order, including recognition of both parents’ roles and signalling that persistent obstruction of the other parent’s relationship is unacceptable. The court must guard against misuse of the order.

Under the Children Act 1989, s.11I requires a warning notice where the court makes a contact order. It was arguable that the provision did not extend to a shared residence order. Because that issue affected the validity of an enforcement order, permission to appeal was granted on the warning-notice ground.

The mother sought renewed permission to appeal against parts of an order made by HHJ Pearl on 24 March 2009 under the Children Act 1989. The order provided for shared residence of the child with both parents and included a warning notice concerning non-compliance.

The mother challenged both the shared residence order and the attachment of the warning notice. A later order made after alleged breaches imposed an enforcement order under s.11J. The central issue was whether a warning notice under s.11I could validly be attached to an order framed as shared residence rather than contact.

Wilson LJ delivered the judgment, with which Rimer LJ agreed. The application concerned permission to appeal, not the final determination of the underlying child-arrangements dispute.

1. Shared residence. The appropriateness of a shared residence order cannot be determined solely by calculating the percentage of time spent with each parent. Considerations may transcend the mathematical allocation, including the importance of conveying to a parent that the other parent’s role is significant and that obstructive conduct is contrary to the child’s interests. The court must also guard against a shared residence order being misused to interfere with the child’s life with the other parent. Permission was refused on the grounds challenging the shared residence order.
2. Warning notice. The Children and Adoption Act 2006 had inserted s.11I into the Children Act 1989. Section 11I required a warning notice where the court made a contact order. The judge had treated “contact order” as including the apportionment of time directed by the shared residence order. The Court of Appeal considered it arguable that he had no power to attach a warning notice to the order actually made. The reference in the notice to s.34 of the Family Law Act 1996 was inapposite; the notice should instead have addressed the statutory sanctions.
3. Enforcement order. An enforcement order under s.11J could be made only against a person who had failed to comply with a contact order and who had been given a notice under s.11I. The validity of the warning notice was therefore linked to the validity of the later enforcement order requiring the mother to perform unpaid work.
4. Disposition. Permission to appeal was granted on ground 3, concerning the warning notice, but refused on grounds 1 and 2. If an appeal against the enforcement order was filed within 28 days, it was to be linked with the warning-notice appeal and heard with it. Otherwise, the warning-notice appeal would proceed alone.

1. Court of Appeal (Civil Division) — on 2 November 2009, the court granted permission to appeal on the warning-notice ground and refused permission concerning the shared residence order: [2009] EWCA Civ 1266.
2. Principal Registry of the Family Division — HHJ Pearl made the order under appeal on 24 March 2009. A further order dated 11 September 2009 imposed an enforcement order after alleged breaches.