AZ v BX

A child arrangements order must be tailored to the child’s welfare. The court may make a detailed, flexible or relatively open order, but it must consider the practical consequences of the chosen form. Where parents are unable to agree fundamental arrangements, an order requiring agreement without a workable default may create uncertainty, further conflict and repeat litigation. A shared lives with order is not confined to equal care and is not automatically unsuitable where parents are antagonistic. The choice between shared lives with and lives with/spend time with orders is a welfare decision, not merely a label. The court must also consider the order as a whole, including the practical consequences of Children Act 1989 s13.

The appellant appealed from child arrangements orders made by HHJ Richard Clarke in the Family Court at Watford. The children were to live with their mother, spend specified term-time and weekend periods with their father, and divide school holidays equally on dates to be agreed. No separate arrangements were made for religious festivals or other special days. The parents had a persistently hostile relationship and had been unable to work together constructively.

Permission had been granted on grounds concerning the holiday arrangements and the form of the lives with order. Permission was renewed in relation to other grounds. The central issues were whether the order should contain default holiday arrangements and whether a shared lives with order was required by the children’s welfare.

1. Appeal allowed in part. The appeal was allowed on the holiday arrangements and on the choice between a shared lives with order and a lives with/spend time with order. The renewed application for permission on the term-time Sunday overnight issue was refused, and the appeal on special days was dismissed.
2. Under Children Act 1989 ss1 and 8, the court has wide flexibility to make a tightly defined, partly defined or open child arrangements order. The choice must be governed by the child’s welfare. A court must not reject defined orders as a matter of general principle, although simplicity and flexibility may be welfare advantages.
3. Where the evidence shows that parents are unlikely to agree fundamental arrangements, an order which merely requires them to agree is likely to produce uncertainty, renewed conflict and further applications. In this case the judge’s findings that the parents could not work together made it irrational to leave equal holiday arrangements without a defined default. A simple default provision would have been sufficient.
4. No separate order for birthdays, religious festivals, bank holidays or other special days was required. Those occasions would fall within the term-time and holiday arrangements, and a more elaborate scheme would not necessarily have served the children’s welfare.
5. The choice of a shared lives with order is a substantive welfare decision. Such an order may be appropriate where time is divided unequally and is not barred by parental antagonism. The court must consider the order alongside the time division and its practical effects, including parental responsibility, control of arrangements and the ability to remove the children from the jurisdiction under Children Act 1989 s13.
6. The judge had treated the choice as a labelling issue and had not adequately assessed the welfare consequences of the alternatives. Given the findings about parental control, equal parental importance and overseas holidays, the only rational conclusion was that a shared lives with order should be made.
7. The High Court substituted orders. The children were to live with both parents. During school holidays they were to live with each parent for equal nights, subject to written agreement six weeks beforehand and defined alternating default arrangements if agreement was not reached. No separate order was made for special days.

• Family Court at Watford: HHJ Richard Clarke made child arrangements orders on 5 January 2024, perfected on 29 January 2024. The children were to live with the mother, spend specified time with the father, and divide school holidays equally by agreement.
• High Court (Family Division): Permission was granted on grounds 2 and 4, with renewal sought on grounds 1 and 5. The appeal was allowed on grounds 1 and 4, ground 2 was refused, and permission on ground 5 was refused. The High Court substituted a shared lives with order and defined default holiday arrangements.