Legal case notes: Re: R (Residence: Shared Care: Children’s Views) [2006] 1 FLR 491, CA

The Facts
The parents of two children, aged 10 and eight, separated. The mother left the family home and, with the children, moved to a new home about 30 minutes away by car. The parents reached agreement whereby the children spent five days with one parent, and then five days with the other parent. The agreement broke down, with constant argument about whether the children should live with the mother and have regular contact with the father, which was what the mother wanted, or whether there should be shared care orders, which was what the father wanted. The parents made cross applications for residence orders.

The CAFCASS officer said in his report that the children had made it clear upon more than one occasion that they were very happy with the current circumstances, migrating between both homes every five days, but that the ‘geographical dislocation of the parties’ meant that these arrangements could not be sustained in the long term, and he recommended a residence order in favour of the mother.

In evidence, however, he said that the travelling distance was not an insurmountable problem, but suggested that any shared care arrangements must include a degree of cooperation which, he said, was missing between these parents, and that there were disputes as to the children’s education, and their friendships and activities. He nevertheless said that both children continued to express a wish to live with both parents equally.

The County Court judge took the view that shared care arrangements always require an exceptionally good relationship between the parents. He said: ‘That does not appear to be possible in this case. The background is that the father still loves the mother, and the mother is perhaps cold towards him … therefore I have concluded that to take what might at first sight appear to be an easy course in ordering that the present situation continue is not in common sense and in the interests of the children.’

He supported the CAFCASS officer’s recommendation, made a residence order in favour of the mother, and said that there should be generous contact with the father.

The father appealed. Through no fault of his, the appeal was not heard until nearly a year later. Meanwhile, the children had been living with the mother under the residence order in her favour.

Held The judge’s consideration of the children’s wishes had been perfunctory. He merely said: ‘I have mentioned the wishes of the children and do not mention them further.’ But the children’s wishes were an important ingredient, and had to be carefully considered and weighed in the balance.

Moreover, the judge’s approach to the issue of shared residence was unsupportable. Although he had rightly referred to the significant shift in case law over the course of the last 10 years, he did not seem to have understood the pace or direction of that movement. A harmonious relationship between parents is no longer a prerequisite of a shared care order. Indeed, the presence of that sort of harmonious relationship would be a contra-indication of a shared residence order, since the parents would fall within the no order principle emphasised by S 1(5) of the Children Act 1989.

For the judge simply to dismiss what was an important option on the basis that the parents had the potential for continuing emotional conflict was not good enough, particularly as it had operated for the benefit of the children for the preceding six months, and the children’s strong wish was to see it continue. The judge did not give sufficient consideration and weight to the stated wishes of the children.

Children have a right of participation in private law proceedings and, in this instance, that participation had been afforded through the investigation of the CAFCASS officer, and what had emerged from that investigation demanded a very careful judicial investigation.

But, with reluctance, the Court of Appeal declined to allow the appeal, because the arrangement put in place by the residence order had in fact been working well and, looking to the welfare of the children, it would risk more to their current security to risk further litigation which might distress and unsettle them.

Comment A shared care order is made under S 11(4) of the Children Act 1989, which provides that the court may make a residence order in favour of two or more persons who do not themselves all live together, and that the order may specify the periods during which the child is to live in the different households concerned.

The no order principle is contained in s. 1(5), which provides that where a court is considering whether or not to make one or more orders under the act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all. Before the Children Act 1989 the court could not make shared care orders.

For some years after the act came into force, the court  was reluctant to make such orders unless the parents were in agreement not only in principle, but as to the periods during which the child was to live with each of them. This case not only makes it clear that when parents are in agreement, such orders are not necessary, but also shows that the courts are prepared to make such orders even when there is a dispute between the parents.

What is even more significant about this case is the importance attached by the Court of Appeal to the children’s wishes, and the reference to the children’s right of participation in private law proceedings. Section 1(3) of the Act provides that a court shall have regard in particular to the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding).

Michael Segal has been a district judge of the Principal Registry of the Family Division since 1985. This is a specialist family court and about two-thirds of its work concerns disputes about children.

The cases presented here aim to help the reader understand better the nature of and the types of decision making within the court system.