Brian David Pengelly v Amanda Julie Enright-Redding/
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,LORD JUSTICE SCOTT BAKER,LORD JUSTICE WALL |
| Judgment Date | 09 November 2005 |
| Neutral Citation | [2005] EWCA Civ 1639 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B4/2005/1235 |
| Date | 09 November 2005 |
[2005] EWCA Civ 1639
Lord Justice Thorpe
Lord Justice Scott Baker
Lord Justice Wall
B4/2005/1235
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EXETER COUNTY COURT
(HHJ MACKINTOSH)
Royal Courts of Justice
Strand
London, WC2
MR RICHARD HICKMET (instructed by Porter Dodson) appeared on behalf of the Appellant
MR MARK LYNE (instructed by Messrs Stones) appeared on behalf of the Respondent
The parties to this appeal have an only child, Megan, who is six years of age. When they separated she was three years of age. The arrangements for sharing thereafter were managed sensibly, and the parties were communicating in a civilised way, certainly at the time of a hearing on 19 December 2002. The CAFCASS reporter at that stage felt that the effective establishment of two homes for Megan made this a case suitable for a shared residence order. But that solution was not then acceptable to the mother, and as a result of negotiations, the father conceded that there should be a residence order in her favour on the basis of a rota which divided Megan's time between the two homes in proportions that certainly pointed towards the mother's home as the primary home, but by a comparatively narrow margin.
The father issued an application for a shared residence order and for an extension of the proportion of the year that Megan spent with him on 4 September 2003. For reasons which we have not explored, the application did not come before the court until 3 December 2004, when Judge Mackintosh, in the Exeter County Court, blessed an arrangement then agreed by the parents for referral to mediation. There was a debate before him as to whether the rota that had been in force then for some two years should be adjusted to give the father an extra day in each fortnight within the school term. The mother was very unhappy about that, but the judge imposed it. The consequence of that adjustment was to give the father roughly 45 per cent of Megan's time, taking one year with another.
Unfortunately, after the hearing the mother changed her mind and refused to pursue the mediation route. Accordingly, the case was referred to the judge's list, and on 6 April he devoted a day to evidence and submissions from the parties and their then counsel.
The CAFCASS reporter had filed a second report for the purposes of what may be regarded as day one, namely 3 December 2004, and in her conclusions she recorded a shift of opinion away from a shared residence order to the status quo, namely residence order to mother. The basis of her shift was the marked deterioration in the relationship between the parents. They had sadly reached the point where they were incapable of communicating, certainly verbally, without either altercation or the risk of altercation. However, her oral evidence to the court was given on 3 December, and it seems that very little additional preparation was undertaken for the April hearing, and when the case was called, it was counsel for the mother who opened and who produced a schedule which represented the mother's proposal for the immediate future.
The mother's position was essentially to advocate the continuation of the status quo. Mr Hickmet, who represented the father here and below, set out his stall at a relatively early stage. He, on instructions, sought the shared residence order and also an equal division of Megan's time. So those were the two issues for the judge to decide.
There is a transcript of the proceedings, which shows full and relatively informal exchanges between the parties, their advocates and the court, at the end of which the judge gave a judgment which apparently lasted something like an hour. Unfortunately, that crucial part of the proceedings was not transcribed, or, if it was transcribed, the tape was then lost. So the only record we have of judgment is a note which was taken by Mr Hickmet and agreed with counsel, who appeared below for the mother. It was put before the judge for his approval. He was not particularly happy with it, but made what he regarded as essential alterations. The note is only some six pages long and is clearly, at best, a summary or distillation of what the judge actually said. Mr Hickmet has engagingly confessed that he had flagged a bit towards the end of his endeavours to note the judgment. However, he submits that the essential reasoning of the judge is discernible from the note, and Mr Lyne, who did not appear below, has not challenged that proposition.
Mr Hickmet submits that this was a classic case for a shared residence order: the child had two homes; the division of time between those two homes was nearly equal; both parents had parental responsibility. A shared residence order would quite simply reflect the reality. He criticises the paucity of the judge's reasoning for not acceding to the simplicity of equal division of time. Mr Hickmet submitted that were the parties to move from the present relatively sophisticated rota to a simple process of alternative weeks during the school terms and equal sharing of the school holidays, the opportunity for bickering and dissension would be reduced to a minimal level.
Mr Lyne, who has argued his case with skill and strength, relies on the clear exercise of a judicial discretion, the judge having had the supreme advantage both of seeing and hearing the parties, and also of continuity of management. He particularly emphasises that the principle is not and should not be that a shared residence order automatically follows from proof of the underlying foundations, namely two homes, and more or less equal sharing of time. In those cases, as in all others, Mr Lyne emphasises the importance of the exercise of a judicial discretion on a case by case basis, always guided by the paramount consideration of welfare.
I have not found this a particularly easy appeal to decide, partly because we have no transcript of the judgment below and partly because it was seemingly agreed that the judge should not investigate and make findings upon mutual allegations of misconduct in the month of February 2005, that is to say in the interim between the two hearings. It does not seem to me profitable for the purposes of this judgment to say any more about that aspect, but it is an aspect that has undoubtedly extended the argument of the appeal.
I then approach the two quite separate questions that we have to decide. Has Mr Hickmet made good his submissions first in relation to the...
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