DE v FG

In determining child arrangements, the court’s paramount consideration is the child’s welfare. A shared-lives-with order is not merely a matter of labelling. Its form must be evaluated with the division of time and all other arrangements by applying the welfare checklist.

Parental hostility does not automatically make a shared-lives-with order unsuitable, and such an order may be appropriate where time is unequal. The court may decline a fact-finding hearing where it is not necessary, relevant or proportionate, but disputed evidence and established patterns of conduct must still be considered where they bear on future risk and welfare. Past domestic abuse and substance misuse are not necessarily historical. Child arrangements should promote stability, reduce parental conflict and preserve the child’s important relationships with both parents.

This was a final welfare hearing concerning H, aged seven, following extensive litigation between his parents in several European jurisdictions and interim proceedings in England. The father had initially sought orders under the inherent jurisdiction, including a Port Alert and Passport Order, after alleging that the mother had brought H to England without his consent and might remove him.

In England, H had spent most time with his mother, with increasing overnight contact with his father under interim Child Arrangements Orders. Both parents sought continuing substantial unsupervised contact. The father proposed a shared-lives-with order with an equal division of time. The mother supported H living with her, with five nights in every 14 spent with the father.

The issues were the form of the Child Arrangements Order, the division of time, arrangements for holidays and foreign travel, and whether the protective orders should remain in force.

1. Welfare and evidence. Under the Children Act 1989, H’s welfare was paramount. Delay was relevant, and the welfare checklist had to be applied. The court was entitled to proceed without a separate fact-finding hearing because the disputed allegations did not require determination to decide arrangements, particularly since both parents accepted that H could spend substantial unsupervised time with the other. That did not permit the court to disregard the evidence. Past conduct, patterns of behaviour and undisputed matters remained relevant to future risk and welfare.
2. Shared-lives-with order. Applying AZ v BX (Child Arrangements Order: Appeal) [2024] EWHC 1528 (Fam), referring to the dicta in L v F [2017] EWCA Civ 2121, the choice between a shared-lives-with order and a lives-with/spend-time-with order was not merely one of nomenclature. It required a full welfare evaluation alongside the division of time and other terms. Mutual hostility did not automatically exclude a shared-lives-with order, which could be appropriate even where time was unequal. Here it clarified that both parents had equal responsibility for H, without creating an equal division of time.
3. Risk and stability. The father’s sustained threats and abuse, long history of cannabis use and lack of insight created relevant future risks. The mother’s anxiety and resistance to support also harmed H by transmitting parental conflict. H required stability, routine, continuing professional support and protection from the conflict. An equal division of time would be destabilising and risk further emotional harm.
4. Orders. The court made a Joint Lives With Order. During term time H was to spend five nights in every 14 with his father and the remainder with his mother. Holiday arrangements provided broadly equal time, subject to longer summer periods with the mother. Detailed safeguards governed foreign travel, handovers, communication, injuries and use of a Parenting App. The Port Alert and Passport Order were discharged. No restriction under CA 1989 s91(14) was imposed.

This was a first-instance final welfare determination. The judgment records earlier proceedings in the foreign jurisdiction X, the father’s appeal against permission for relocation to England, and interim orders made in England by other High Court judges before the final hearing. No appeal from the present decision is stated.