Florence v F & Anor

In determining competing child arrangements, the child’s welfare remains paramount. For an articulate young person aged 15, ascertainable wishes and feelings, considered in light of age and understanding, may carry very significant weight, particularly where those wishes are longstanding and independently held. The court must assess the likely outcome of each proposed arrangement throughout the child’s remaining childhood and into early adulthood. It may depart from a guardian’s recommendation, but should give reasons. The court may prefer a weighted shared-care arrangement, rather than an equal week-on/week-off regime, where the latter would be disruptive and a main base better serves the child’s welfare while preserving a meaningful relationship with both parents.

Florence, aged 15, applied for a child arrangements order allowing her to live mainly with her mother. She had lived with her father for more than five years following prolonged and acrimonious parental proceedings, while maintaining relationships with both parents. The Cafcass guardian recommended an equal shared-care arrangement, supported by the father. Florence sought a main base with her mother, and the mother supported her application. The central issue was which residential arrangement would best promote Florence’s welfare, having regard in particular to her age, understanding, enduring wishes and feelings, the risks to her relationships with both parents, and the disruption caused by moving between homes.

1. Outcome. The court ordered that Florence should have her main base with her mother, while making a joint lives with order and preserving substantial, regular time with her father. The arrangement was to last only until the end of the school year in 2022.
2. Florence’s welfare was the paramount consideration. The court had to identify the arrangement likely to deliver the best outcome during her childhood and enable her to reach her best potential. The guardian’s recommendation was not binding, although reasons were required for departing from it.
3. At 15, Florence’s ascertainable wishes and feelings, assessed in light of her age and understanding, carried very significant weight. The court relied on Mabon v Mabon & Ors [2005] EWCA Civ 634 as underlining the respect owed to the views of an articulate young person who must live with the order. Florence’s wishes were strong, consistent and her own, rather than merely reflecting her mother’s feelings.
4. The court assessed both immediate and longer-term welfare. Florence had stability and educational success in her father’s care, but was emotionally close to both parents. The risks included disruption, emotional pressure, exposure to parental conflict, and possible damage to her relationship with her father.
5. An equal week-on/week-off arrangement was rejected because Florence considered it disruptive and the court accepted that assessment. A slightly weighted arrangement gave her a main base with her mother while preserving relaxed and meaningful time with her father. The order depended on the parents living close together and Florence remaining at the same school.

Earlier permission and representation applications had been refused in the underlying proceedings. Florence’s application to bring proceedings was initially refused by HHJ Oliver, but the appeal was allowed by this court after the father accepted that she should be permitted to make the application. The present judgment determined the substantive child arrangements application.