T v T

A shared residence order depends on the child’s best interests in the circumstances of the individual case. It requires neither equal periods of residence nor parental co-operation and goodwill. It may confirm the factual reality of the child’s life or emphasise the equality of parental responsibilities, but it is not the presumptive order.

A court must take account of a child’s wishes and professional welfare advice, but neither is determinative. An appellate court should not interfere with the trial judge’s welfare assessment unless a material error is shown. A residence order may exceptionally include an additional parental figure where that provides practical protection against serious disruption to the children’s established living arrangements.

Two children lived principally with their mother, M, and her civil partner, L, while maintaining regular and substantial contact with their father, F. All three adults had parental responsibility. The Recorder made a shared residence order in favour of M and F, prescribed substantial time with F, and refused to include L in the residence order.

M and L appealed. They contended that the order failed to reflect the children’s primary home, marginalised L, provided excessive time with F, insufficiently respected one child’s wishes and the CAFCASS officer’s advice, and was too complicated. A further issue concerned the disruption that could occur if M died while the order remained in force. F agreed to the inclusion of L in a residence order involving all three adults.

1. Appeal allowed in part. The Recorder’s shared residence order in favour of M and F was replaced by a residence order in favour of M, F and L. The appeal was otherwise dismissed.

2. The Recorder was not required to determine every disputed factual issue. He had to determine those issues which affected the welfare decisions concerning the children. The adults’ original intentions about their respective parental roles had been overtaken by the children’s established relationships and living arrangements. The orders therefore had to accommodate the position as it existed.

3. A shared residence order must be determined by the child’s best interests in the light of all the circumstances. It is not necessarily unusual and may confirm the factual reality of a child’s life or emphasise equality of parental position and responsibility. Equal care is not required, nor are co-operation and goodwill indispensable. The proposition that shared residence is ordinarily the rule went too far. The Recorder had correctly made a fact-sensitive welfare assessment and remained within his discretion.

4. The grant of parental responsibility to L legally recognised her parental role. The Recorder was entitled to find that the children already understood the roles of all three adults and that further validation or labelling was principally an adult concern. The order was detailed rather than impermissibly complicated; its precision was justified by poor communication between the adults.

5. The Recorder was required to consider the child’s wishes and the CAFCASS officer’s advice, but was not bound by either. Although he may have misunderstood part of the officer’s evidence about the pace at which one child’s overnight stays should increase, his flexible order accommodated her reluctance and permitted early return. That possible misunderstanding did not undermine the exercise of discretion.

6. The existing order created a potential for abrupt disruption if M died, because F could seek the children’s immediate removal from L’s care. Given F’s agreement to include L, a three-person residence order provided a practical means of preserving the status quo until any dispute could be resolved. This consideration will not regularly determine whether such an order should be made; other welfare factors may require a different result.

1. Court of Appeal (Civil Division): In [2010] EWCA Civ 1366, allowed the appeal only to the extent of substituting a residence order in favour of M, F and L; otherwise dismissed the appeal.
2. Brighton County Court: Recorder Simon Barker QC made a shared residence order in favour of M and F, granted parental responsibility to L, refused a residence order jointly in favour of M and L, and provided for review after 12 months.