Re K (Shared Residence Order)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wilson,Lord Justice Wall,Lord Justice Buxton |
| Judgment Date | 04 April 2008 |
| Neutral Citation | [2008] EWCA Civ 526 |
| Docket Number | Case No: B4/2007/2823 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 April 2008 |
[2008] EWCA Civ 526
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TAUNTON COUNTY COURT
(HIS HONOUR JUDGE BROMILOW)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Buxton
Lord Justice Wall and
Lord Justice Wilson
Case No: B4/2007/2823
(LOWER COURT No: YE07P00006)
THE APPLICANT “FATHER” APPEARED IN PERSON, ASSISTED BY A MCKENZIE FRIEND.
Mr Nkumbe Ekaney (instructed by Porter Dodson Solicitors) appeared on behalf of the Respondent “Mother”
A father, who appears in person, assisted by a McKenzie friend, applies for permission to appeal against a decision made by His Honour Judge Bromilow in the Taunton County Court on 16 November 2007. The judge dismissed an appeal by the father against the dismissal of an application by the father under the Children Act 1989 by District Judge Smith in the Yeovil County Court on 5 June 2007. The application related to a boy, G, who was born on 20 November 2001 and who is thus now six years old. The father's application to the district judge was for a ruling that G should divide his time equally between the homes of the father and of G's mother and that the ruling should be expressed as terms of an order for shared residence in favour of both parents. In both courts below the father, again, appeared in person; the mother was represented before the district judge by her solicitor and before the circuit judge by counsel other than Mr Ekaney, who appears for her today.
It follows that the proposed appeal to this court would be a second appeal. At a hearing on 13 March 2008 attended by the father without notice to the mother, my Lord, Lord Justice Wall, adjourned this application for permission to be heard on notice to her and on the basis that, were permission granted, the substantive appeal should follow forthwith.
The parents of G were never married but, by order dated 15 February 2005, the father shares parental responsibility for him with the mother. The parents began to cohabit in June 2000 and separated in October 2004. A month prior to the separation, when he was aged almost three, G was diagnosed as having mosaic Down's syndrome. This is a variant of Down's syndrome which apparently reflects a somewhat lesser degree of chromosomal abnormality than is suffered by those with the full-blown syndrome. The physical features of those with the mosaic variant may be less distinctive and their development in their early years, say until the age of seven, may be somewhat more akin to those of children who do not suffer the syndrome. Some of the profound difficulties which children with Down's syndrome confront tend to afflict those with the mosaic variant only at that slightly later stage.
An order under the Act of 1989 made by consent between the parents, dated 30 June 2005, did not include a residence order referable to G in favour of the mother but instead recited an agreement that he should reside with her. The actual order related only to the father's contact and provided that, from December 2005, it should take place on a staying basis on alternate weekends. Following the making of that order, as Mr Ekaney stresses to us, the mother agreed extensions of the father's contact with G such that, at the time when the father issued his application in January 2007, G, who had begun to attend mainstream school in September 2006 but who at some stage has been made subject to a statement of special educational needs, was staying with the father for one half of each school holidays, for alternate weekends from Friday evening to Monday morning during term time and for one night during each week of school term, namely from Wednesday evening to Thursday morning. The arrangement afforded to the father about 40% of G's time and, thus, to the mother about 60% of it.
By his application to the district judge the father sought an increase in the time to be spent by G with him which would yield precise equality of time with that to be spent by him with the mother. Thus, in that there were in effect four relevant nights of the week during school terms and in that G was spending only one of them with him, the father sought a ruling that G should stay with him on one extra night for each such week and argued that the times to be spent by G in each home should be expressed as terms of a shared residence order rather than, as before, as terms of a contact order in his favour.
In my experience it is now quite common for a parent with a substantial degree of contact with a child to apply, as here, for a ruling that the time to be spent by the child with him (or, less often, her) should be increased to a level of equality with that to be spent with the other parent and for the arrangements favoured by the court to be expressed as terms of a shared residence order. Equally, in my view, the proper legal approach to the application is now clear: it is that, because a shared residence order may serve the interests of the child not only in circumstances in which the division of his time between the two homes is equal, the two aspects of the application, namely for a ruling in favour of an equal division of time and for a shared residence order, do not stand or fall together. On the contrary, they have to be considered separately; and the convenient course is for the court to consider both issues together but to rule first upon the optimum division of the child's time in his interests and then, in the light of that ruling, to proceed to consider whether the favoured division should be expressed as terms of a shared residence order or of a contact order.
Thus in Re F (Shared Residence Order) [2003] EWCA Civ 592, [2003] 2 FLR 397, when sitting as a temporary member of this court, I observed, at [34], that it was significant that a shared residence order had been held to be appropriate in a case in which the children were to spend only 38% of each year with the father; and I added that “any lingering idea that a shared residence order is apt only where, for example, the children will be alternating between the two homes evenly … is erroneous”. Then, in A v A (Shared Residence) [2004] EWHC 142, [2004] 1 FLR 1195, my Lord, Lord Justice Wall, then sitting as a judge of the Family Division, reiterated what I had said and, at [115], pointed out that, in the report of the Law Commission No.172, upon which the Act of 1989 had been based, it had been expressly envisaged that a shared residence order might be appropriate even in circumstances in which the division of the child's time between the two homes was unequal. Still more recently, in Re P (Shared Residence Order), [2005] EWCA Civ 1639, [2006] 2 FLR 347, this court considered an appeal against the dismissal of a father's application, first, that the division of his child's time between his home and that of the mother should be increased from 45%/55% to equality and, second, that the division should be expressed as terms of a shared residence order. Thorpe L.J. said, at [10], that the father's application had raised “two quite separate questions”; and in the event this court dismissed such part of the father's appeal as challenged the judge's refusal to adjust the division of time to equality but granted such part of it as challenged his refusal to make a shared residence order.
The problem in the present case is that the district judge did not approach the issues raised by the father's application separately. He approached them on the basis that they stood or fell together and, specifically, that, if he was of the view that it would be wrong to adjust the division of G's time between the homes to a level of equality, the father's application for a shared residence order fell away.
We have an official transcript of all that was said in evidence and by way of submission to the district judge as well as an approved transcript of his judgment. It is fair to say that, in their closing submissions, neither the solicitor for the mother nor the father clearly reminded the district judge that the two issues did not stand or fall together and that, even if he did not favour an equal division of G's time between the two homes, he should proceed to consider the application for an order for shared residence. I have, however, referred above to the decisions in A v A (Shared Residence) and Re P (Shared Residence Order) in part because it is clear that copies of them were at any rate placed before him. With respect, he should have collected the proper approach from them.
In his judgment the district judge surveyed a large amount of evidence placed before him by the father as to the extent of his commitment to G and his concern to act, in the many years likely to lie ahead, as a major provider, indeed so the father hoped an equal provider, of the especial degree of physical, educational, social and emotional support which, by reason of his condition, G will probably need. In a passage on which, in the event, Mr Ekaney himself relies, the district judge said:
“10. The father says, as a matter of some pride, that he has taken the time and trouble in [G]'s best interests to go upon these courses [for carers of persons with Down's syndrome] and to learn what he can and to apply it when [G] is with him. Thus it is that the father says that he is fully involved in [G]'s upbringing. He encourages him with reading and writing, with social interaction, with any activity...
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