A, B and C (Children: Nesting Arrangement)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Warby,Lord Justice Baker,Lady Justice Asplin |
| Judgment Date | 03 February 2022 |
| Neutral Citation | [2022] EWCA Civ 68 |
| Docket Number | Case No: CA-2021-003314 |
| Year | 2022 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 68
Lady Justice Asplin
Lord Justice Baker
and
Lord Justice Warby
Case No: CA-2021-003314
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
The Hon Sir Jonathan Cohen
FD20P00275
Royal Courts of Justice
Strand, London, WC2A 2LL
Catherine Wood QC and Charlotte Baker (instructed by Selby Lowndes Family Solicitors) for the Appellant father
Anna McKenna QC and Charlotte Hartley (instructed by Katz Partners LLP) for the Respondent mother
Hearing dates: 27 January 2022
Approved Judgment
Remote hand-down: This judgment was handed down remotely at 10:30am on Thursday 3 February 2022 by circulation to the parties or their representatives by email and by release to BAILII and the National Archives.
This is an appeal by a father against an interim child arrangements order made in long-running proceedings concerning his three children, who I shall refer to as A, B and C, all girls aged 17, 15 and 9 respectively. The central question arising on the appeal is whether the judge's decision to vary the existing “nesting” arrangement, under which the children remained living in the former family home while their parents move in and out depending on when it is their turn to provide care, was unfair or wrong.
In summarising the factual background relevant to this appeal, it is unnecessary to set out the full history of the family. In particular, there is no need to refer to any specific personal matters relating to the girls.
The father is a wealthy and successful businessman. The mother is an artist. Prior to the breakdown of the marriage, the family lived in a substantial home in London and enjoyed a high standard of living, which included many foreign holidays including regular stays in a property abroad owned by the father.
The parties separated in 2018. At some point thereafter, (the precise date is disputed), they reached an interim agreement for child arrangements, creating what was described as a 2:2:5:5 nesting pattern each fortnight during the school term whereby each party would take it in turns to vacate the home for periods of two or five days, leaving the other parent at home with care of the children. The father's case was that this agreement was reached because both parties considered it to be in the children's interests. The mother asserted that it arose out of financial necessity because she was unable to afford alternative accommodation. Whatever the original motivation, the arrangement remained in place until the first Covid-19 lockdown in March 2020, when both parties resumed living full time in the family home with the three children.
Meanwhile, the mother had started financial remedy proceedings. On 29 November 2019, the first appointment took place before Cohen J. During an exchange with counsel in the course of the hearing, the judge described the nesting arrangement as “desperately unsatisfactory … not a satisfactory long-term solution or even a mid-term solution” and observed that:
“there is more than enough money to sort it out … with the resources available in this case … it should be more than possible to arrive at a solution where each has their own home and it is the children who do the shuttling rather than the adults.”
Over Easter 2020, the mother removed C from the house for six days but then returned. At the end of April, the police attended the property after the mother reported that she had been pushed by the father. On 7 May 2020, the mother filed applications for a child arrangements order and occupation and non-molestation orders. At the first hearing of those applications before Cohen J on 15 May, the injunction application was compromised on cross-undertakings and an interim child arrangements order was made providing for the nesting arrangement to continue. Each parent gave an undertaking not to remove the children overnight during their own period of care unless otherwise ordered or agreed and to vacate the home during the other's period of care. The parties agreed to share holidays equally with dates to be agreed and subject to any advice given by the independent social worker whom the parties were given permission to instruct as an expert to advise as to what living arrangements would best promote the children's welfare.
In September 2020, the parties attended a private FDR and financial mediation with Sir Paul Coleridge, leading in due course to a settlement of the mother's financial claim under which she received a sum of €22m. Later, the mother took a lease of another property in London a few miles away where she lives when not caring for the children in the former family home. In November 2020, the family entered family therapy with Mr Philip Trenchard.
The next hearing in the Children Act proceedings took place before Theis J on 3 December 2020. The independent social worker appointed at the start of the proceedings had sadly died and a replacement was appointed. Further case management directions were made. Amongst the issues identified as requiring determination in the proceedings was “what child arrangements would best promote the welfare of the children once the parties are living in separate and independent accommodation on a permanent basis”. The order recorded that the case continued to be allocated to Cohen J. Meanwhile, the two older children had consulted a solicitor, in circumstances which are disputed between the parties. At the next hearing before Cohen J on 12 January 2021, leading counsel attended on behalf of the children and informed the court that the girls wanted to be kept informed about decisions and the date of the final hearing, but did not wish to be joined as parties. The case was listed for a one-day dispute resolution hearing and a four-day final hearing on or after 7 June 2021. In February, the second independent social worker informed the parties that she was unable to continue and a third, Mr Nicholas Dinnage, was instructed. In the same month, the parties engaged in further mediation with Sir Paul Coleridge and agreed that the final hearing should be adjourned to December 2021. At a further case management hearing in May, the timetable for the proceedings was amended accordingly.
On 5 October, the mother's solicitors wrote to those acting for the father stating that the mother had concluded that it would be in the interests of B (who was in her GCSE year) for the final hearing to be adjourned until July 2022, that Mr Dinnage's work be “paused” for eight months, and that in the interim the family should continue to engage in family therapy with Mr Trenchard and consider whether further mediation with Sir Paul Coleridge would be beneficial. On 14 October, the father's solicitors replied agreeing to the postponement. It seems that the children were informed that the final hearing would be adjourned.
Meanwhile, however, Mr Dinnage had in fact completed his work and filed his report on 11 October. He reported that the father contended that the nesting arrangement should continue but that the mother disagreed. The father said he favoured the nesting arrangement because it provided the children with a stable and consistent base, ensured that they remained together “in the only home they have known”, and best reflected their lives prior to the breakdown of the marriage. The father blamed the mother and her advisers for the harm the children had suffered. He was opposed to the children staying with the mother in her new home or visiting her there. The mother told Mr Dinnage that the father was a frightening man who would always get his way and gave examples of how she said he had behaved during the marriage and following the breakdown. She said that she did not feel able to sustain the nesting arrangement, and that, even if phased in over time because of the children's wishes and exam schedules, shared living arrangements in two separate houses would be in their best interests. The parents also discussed with Mr Dinnage their views about holiday arrangements and future therapy.
Mr Dinnage reported on his conversations with the children. As stated above, I do not propose to set out their personal circumstances in any detail. The eldest child, A, informed Mr Dinnage that she would continue to live at the former family home, that she did not wish to stay with her mother, and that she strongly opposed her sisters being “separated” or “made to live between two addresses”. B told Mr Dinnage that she wanted to remain living at the former family home but did want to spend time with her mother and “sometimes stay with her”, adding that her father would not allow this to happen. C similarly told Mr Dinnage that she wanted to remain living in the home, that she would like to visit and stay with her mother sometimes but would prefer to do so with one of her sisters.
Mr Dinnage also spoke to Mr Trenchard and a number of other professionals who had been involved with the family, including staff at the children's schools. He concluded that the three girls had “experienced significant disruption and emotional harm consequent of their parents' separation and their subsequent and continuing discord”. He found it “difficult not to ascribe to the father's conduct the evident characteristics of coercive and controlling behaviour”. Having carried out an analysis based on the welfare checklist in s.1(3) of the Children Act 1989, he recommended that there should be a shared care arrangement such that, over time, the children were able to balance their staying time between both parents in their separate homes. He acknowledged that this recommendation did not reflect the children's stated wishes but concluded that it accorded with their best interests. His report continued:
“7.1.5. In my experience, nesting arrangements work well and...
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