Re F (Shared Residence Order)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,MR JUSTICE WILSON |
| Judgment Date | 18 March 2003 |
| Neutral Citation | [2003] EWCA Civ 592 |
| Docket Number | B1/2002/2441 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 March 2003 |
[2003] EWCA Civ 592
Lord Justice Thorpe
Mr Justice Wilson
B1/2002/2441
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE
ALDERSHOT & FARNHAM COUNTY COURT
(HER HONOUR JUDGE BONVIN)
Royal Courts of Justice
Strand
London, WC2
DR PAUL MCCORMICK (instructed by Clerey's, Hants GU11 1HT) appeared on behalf of the Appellant Father
MR LEO CURRAN (instructed by Foster Wells, Hants GU11 1JX) appeared on behalf of the Respondent Mother
(Approved by the Court)
Tuesday 18 March 2003
On 23 October 2002 Her Honour Judge Bonvin, sitting in the Aldershot and Farnham County Court, gave judgment on cross-applications for residence orders in respect of the two children of the F family: N, who is five years of age, having been born on 7 October 1997; and L, who is just four, having been born on 12 March 1999. The parties to the dispute were the father, a lieutenant commander in the Navy, 44 years of age; and the mother, who has had part-time employment but who has principally been concerned with the daily care of the children. She is 38 years of age. The parties had married on 10 September 1994 and separated on 16 June 2001. The separation between the parties was particularly traumatic. The mother raised the assertion that N had had some inappropriate sexual experience with her father, and she applied without notice to the court for an injunction which led to the father's expulsion from the home. In subsequent investigations, conducted both judicially and by the appropriate child protection services, it emerged that there was not a scintilla of evidence to support the mother's anxiety, and the injunction that she had obtained without notice was appropriately discharged.
However, the separation created by the application was never resolved and the sharing of the children thereafter was managed collaboratively between the parents. The father had always had a great commitment to the upbringing and development of these two girls and despite his equal commitment to his naval career, he had made himself available to the children whenever his commitments to his career did not conflict. So prior to the determination of these cross-applications it was entirely appropriate that there should have been a substantial sharing of the children's lives between these two parents.
The cross-applications were undoubtedly hard to determine. The judge had the task of sifting evidence from a considerable number of witnesses, some of whom were close friends of one or other of the parties; and there can be no doubt at all that there had been a certain alignment of the extended family and close friends, some supporting the mother's cause and some supporting the father's cause.
The mother's proposal for the future was that she should return with the two children to Edinburgh, which is her home town and where her extended family and old friends are still based.
The father, perhaps surprisingly, given the extent to which the future fell to be determined by the judgment, had resigned from his commission in advance of the hearing. His plans were therefore fluid. He had his naval pension to depend upon and he intended to develop a new career in civilian employment. But he acknowledged the possibility that if the judge sanctioned the mother's plan to relocate to Edinburgh, he might establish himself in reasonable proximity so as to continue the easy sharing arrangements which were on foot prior to the trial.
The judge also had the advantage of evidence from a very experienced children and family reporter, Mrs Chidgey, who filed a written report in which she concluded that the best outcome for the children would be a residence order to the mother with generous contact to the father. The judge's ultimate conclusion was that there should be a shared residence order, acknowledging the mother's freedom to move with the children to Edinburgh if she so determined. The mother's plan was posited on a move during summer 2003. The judge speculated that the father might withdraw his resignation and continue his service career and she noted that he might alternatively himself move to Scotland. She laid down a flexible pattern of contact which provided for a number of alternative future developments. The order is expressed in this way. There be a shared residence order in favour of the mother and father under which the children are to live with each party for the following periods: during school term time with the mother on all weekdays and for one in four weekends, subject to the applicant father on three out of four weekends and with the father on the Thursday of each week immediately preceding the weekend during which the children are to stay with their mother; with the father for the whole of each half-term holiday. The order proceeds that during the main school holidays the children should spend an equal number of days with each parent. The order then provides for the possibility of both parents relocating to Scotland, in which event, the order continues, the children's time should be shared between the parents in similar fashion. Finally, the order provides for the eventuality of the mother moving to Scotland and the father remaining in England. Then the arrangements shall be subject to the following modifications: any day not taken up by the father during term time weekend because he is unable to travel to Scotland, shall be replaced by an extra day during the main school holidays, subject to the mother's share of the Christmas school holidays not reducing below a minimum of five days and her share of the summer school holidays not reducing below a minimum of seven days.
The order of the court is fully explained in a careful and lucid judgment. The judge records in the earlier paragraphs the extent of the written evidence and the oral evidence that she had heard. She then recorded the background history with appropriate care. In paragraph 16 she recorded the recommendation of Mrs Chidgey which had been substantiated in her oral evidence. Part of the reasoning of Mrs Chidgey was that a sharing of the children's residence would be unworkable in the event of the mother's proposed move to Scotland. It was on the basis of that premise that Mrs Chidgey recommended an order to mother alone.
The judge then turned to the father's case and to her findings in relation to him. The judge could hardly have been more complimentary in her description of the father, both as a witness, a career officer and as a personality. She described him at a very impressive witness. She described him as a man of complete integrity. She made it plain that wherever there was conflict between the evidence of the parents she unhesitatingly preferred the evidence of the father. She recorded the extent to which he had been involved in the lives of the children, giving them of his best outside the 37 hours a week that belonged to the Royal Navy. She recorded that his posting was essentially a shore posting and that he had been absent for work travel for only relatively brief periods ranging from the odd night up to a maximum of one or two periods when he had been away for a month. The judge recorded the excellence of the relationship between the father and the children, and made only small reservations in relation to the vehemence of some of his criticisms of the mother which figured in his written evidence but not at all in his oral evidence.
At paragraph 29 the judge turned to consider the mother's evidence and personality. She contrasted the parents by a finding against the mother that she had many flaws. The judge found that she had not been entirely honest in a number of instances in her dealings with the father during the periods of conflict following the breakdown of the marriage. She found than the mother had a violent temper which she had displayed not only in the course of her quarrels with the father but also on occasions in her handling of the children. The judge also found against the mother that she had a dangerous tendency to prefer one child over the other and that these defects in her personality or in her conduct had not been hidden from the children, but had been revealed to them: they had been exposed to these weaknesses and defects.
On the other hand the judge recorded the extent to which the children's worlds had been centred on the mother. The mother, besides working part-time, was the parent who had spent the majority of the daytime hours with the children. She had breast-fed each of the girls from birth and had dealt with the daily routine. The judge said:
"There is no doubt that she has carried out such duties very well".
That fact was acknowledged by the father more than once in his oral evidence. It is also borne out by a number of the mother's supporting witnesses and by the children's teachers. In addition it is clear that for most of the time the mother's relationship with the children was warm, loving and supportive. The judge continued that that had been confirmed and emphasised by Mrs Chidgey.
The judge turned (at paragraph 42) to consider the law that she had to apply to those facts. She had regard to the statutory check-list in section 1(3) of the Children Act 1989. Having applied the subparagraphs of that subsection to the facts as she had found them she had regard to the range of powers available to the court. First, she said that it was a clear case for the making of an order. Then she noted the options available to her —a sole residence order to the mother, a sole residence order to the father, or a shared residence order. She noted the last had been pointed as...
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