D (Children) (Shared Residence Orders), Re sub nom D v D
| Jurisdiction | England & Wales |
| Judgment Date | 2001 |
| Date | 2001 |
| Court | Court of Appeal (Civil Division) |
Shared residence – Animosity between the parents – Child arrangements settled for considerable time – Mother using sole residence order as a weapon against the father – Whether shared residence order appropriate in the circumstances – Whether exceptional circumstances or a positive benefit to the child must be established for a shared residence order to be made – Children Act 1989, ss 8(1) and 11(4).
The father and mother had married in 1986. There were three children of the marriage aged 13, 11 and 9 years. The marriage broke down in 1995. The pattern was quickly established of the children living with the mother, who obtained sole residence orders, but having very substantial contact with their father. There was an exceptionally high level of animosity between the parties, with frequent court appearances concerning child matters. The father complained that he had difficulty in gaining information about the children’s education and medical treatment. The father brought an application to determine the contact schedule for 2000/2001, for joint residence and for a prohibited steps order, to prevent the mother causing third parties to withhold information about the children from him. The judge found that the mother was using the sole residence order as a weapon in the war with the father. The judge considered the authorities and decided that the making of a shared residence order was a matter for his discretion. As a consequence, he ordered shared residence which he expected to reduce the conflict between the parties. The mother appealed on the ground that a shared residence order was not appropriate as there was no evidence of exceptional circumstances or that shared residence would be a positive benefit to the children.
Held – If it was planned or had turned out that children were spending substantial amounts of time with each of their parents then a shared residence order was an appropriate one to make. There was no need to show exceptional circumstances or a positive benefit to the children as previously held by the Court of Appeal, nor was there any need to add gloss to the legislative provisions of s 8(1) and 11(4) of the Children Act 1989, which were always subject to the paramount consideration of what was best for the children. In the present case the children had substantial contact with the father and were, in effect, living with both parents. There would be a positive benefit to the children through recognition of
their living arrangements by the court. Accordingly, the mother’s appeal would be dismissed.
Re H (a minor) (residence order) [1993] 1 FCR 671 explained.
Per curiam. It is necessary to underline the importance of flexibility in section 8 orders and, consequentially, the Court of Appeal should not impose restrictions upon the wording of the statute not actually found within the words of the section.
Cases referred to in judgmentsA v A (minors) (shared residence order) [1995] 1 FCR 91, [1994] 1 FLR 669, CA.
H (a minor) (residence order), Re[1993] 1 FCR 671, [1994] 1 FLR 717, CA.
Riley v Riley [1986] 2 FLR 429, CA.
AppealThe mother appealed, with leave granted by the judge on 26 June 2000, against the order made by Connor J in the Watford County Court on 1 June 2000 for, inter alia, shared residence of the three children of the marriage. The facts are set out in the judgment of Hale LJ.
Christopher McCourt (instructed by PW Moody) for the appellant.
Alexander Thorpe (instructed by SJ Vickers & Co) for the respondent.
DAME ELIZABETH BUTLER-SLOSS P.1. I will ask Hale LJ to give the first judgment.
HALE LJ.2. There are two matters before the court today. The first is a mother’s appeal against a shared residence order made by Judge Connor in the Watford County Court on 1 June 2000. The judge himself gave permission to appeal on 26 June 2000. Technically an extension of time is required but no doubt he would have granted that if asked and no prejudice has been caused. For my part I would readily grant that extension.
3. The second matter is the mother’s application for permission to appeal against a order of Judge Connor in the Watford County Court on 11 October 2000 dismissing her application that contact with the father be supervised or suspended and ordering her to pay the father’s costs of that day.
4. The case concerns three girls, S, who was born 2 November 1987, and is now just 13; T, who was born on 15 June 1989, and is now 11; and A, who was born on 9 June 1991, and is now 9. The parents are both ethnically Gujerati and of the Hindu religion. The father comes from Kenya, where he still has family. The mother comes from Mumbai in India, where she still has family. An arranged marriage took place in Mumbai on 5 September 1986. The mother was
living in India then, but the father had been living in this country for some time and the couple came to make their home here.
5. The marriage broke down in the summer of 1995. There were divorce proceedings. The pattern was established quite quickly, of the children living with their mother but having very substantial contact with their father. Even from August 1995 this was weekly. As from February 1996 it was one weekday evening and three weekends in five, half the school holidays, birthdays and religious festivals, including a three-week holiday in Kenya. As from June 1996 the pattern was established, in an order made by Judge Ansell, that it was three weekends out of four with the father and the rest of the time shared as before. Later, the father agreed that there should be one shared weekend, so that it became two weekends with him, one with the mother and one shared and that basic pattern seems to have continued. But there were frequent returns to court to settle the precise schedules each year, to ensure the release of passports so that they could go to Kenya, to secure that the mother told the father of the children’s appointments at the eye hospital and to resolve a dispute about the children’s education.
6. The current proceedings began with the father’s application on 16 February of this year to determine the contact schedule for 2000/20001, and for what was called a ‘joint’ residence order and a prohibited steps order prohibiting the mother from causing anyone to withhold information about the children from him.
7. The hearing before Judge Connor began on 15 March 2000. It was part heard to 17 April when there was no time for him to give judgment and so that was delivered on 1 June.
8. There were three basic matters for him to determine. The first was the summer holiday this year. The father wanted to take the...
To continue reading
Request your trial
-
Holmes-Moorhouse v Richmond upon Thames London Borough Council
...by making a residence order (see paragraph 4.12). It was this report which founded Hale LJ's judgment in the leading authority D v D (Shared Residence Order) [2001] 1 FLR 495. She said, in that case, that a residence order was “entirely appropriate” where children are spending substantial a......
-
Re A (A Child) (Joint Residence: Parental Responsibility)
...the appeal would be dismissed; Re G (residence: same-sex partner)[2006] 1 FCR 436 applied; Re D (children) (shared residence orders)[2001] 1 FCR 147, A v A (children) (shared residence order)[2004] 3 FCR 201, Re F (children) (shared residence order)[2003] 2 FCR 164, Re H (Shared Residence: ......
-
Re G (Residence: Same-sex Partner)
...and V (minors) (parental responsibility and contact), Re[1998] 1 FCR 52, [1998] 1 FLR 392, CA. D (children) (shared residence orders), Re[2001] 1 FCR 147, [2001] 1 FLR 495, Fitzpatrick v Sterling Housing Association Ltd[2000] 1 FCR 21, [1999] 4 All ER 705, [2001] 1 AC 27, [1999] 3 WLR 1113,......
-
Re T (A Child) (Order for Costs)
...Cases referred to in judgmentB (M) v B (R) [1968] 3 All ER 170, [1968] 1 WLR 1182, CA. D (children) (shared residence orders), Re[2001] 1 FCR 147, [2001] 1 FLR 495, CA. G (a minor) (wardship: costs), Re [1982] 2 All ER 32, [1982] 1 WLR 438, (1982) 3 FLR 340, CA. Gojkovic v Gojkovic (No 2) [......