IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TELFORD COUNTY COURT
(HER HONOUR JUDGE HUGHES)
London, WC2A 2LL
B e f o r e :
LORD JUSTICE TUCKEY
LADY JUSTICE ARDEN
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MRS HEATHER SWINDELLS QC AND MISS CAROLYN JONES (instructed by Dodds & Partners Solicitors, Leicester LE1 5RA) appeared on behalf of the Respondent
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"The following persons are entitled to apply for a residence or contact order with respect to a child -
(b) any person with whom the child has lived for a period of at least three years;"
"(4)(1) Where a child's father and mother were not married to each other at the time of his birth -
(a) the court may, on the application of the father, order that he shall have parental responsibility for the child;"
"Where the court makes a residence order in favour of any person who is not the parent or guardian of the child concerned that person shall have parental responsibility for the child while the residence order remains in force."
"35. Miss G is firmly entrenched in her view that as the biological mother, she considers that her wishes and feelings are being overlooked by the Court, allowing substantial contact between M, M and Ms W. Somewhat ironically, she promotes her new partner's active involvement in their day to day care and I would suggest that in the future, M and M could become increasingly confused about their own identity and how significant adults fit into their lives. Ms G's domestic arrangements and confirmation that M and M are happily settled at school and nursery, suggests that a substantial change of arrangements would not be in their interest at present. However I would suggest that the importance and value of Ms W's role in their lives needs to be acknowledged. The current law, whilst recognising same sex relationships, stops short of granting parental responsibility unless a joint residence order is made. I would suggest that such a move would help to ensure that M and M grow up with a better chance of understanding the complexity of their own identity and should not be seen as detracting from Ms G's role, as their main carer."
"I would suggest to the Court that there should be an Order for Ms W and Ms G to share joint residence of M and M and that alternate weekend contact from Friday to Monday ... should continue."
There were then further recommendations in regard to the sharing of holidays.
"I must inevitably conclude that the proposed move must in part be deliberately designed to frustrate the current contact arrangements."
Despite that finding, the judge then moved to express relatively briefly her ultimate conclusion. She said:
"Having read and heard all the evidence I regret to say that having considered this matter very carefully indeed and the children's welfare being my paramount consideration, I cannot accept Ms Barrow's recommendation for joint residence order which would give Ms W parental responsibility. In my view such a sharing of parental responsibility would result in endless disputes between the parties which may require the Court's intervention to resolve issues of education, accommodation, elective medical procedures and so forth which could not be in the long term interests of these children. A recent consultation document from CAFCASS encourages its officers to consider shared residence orders where parental cooperation and practical circumstances allow and it appear to be in the child's interests. This does not seem to me to be such a case."
"... Miss W is a significant figure in their lives and that her important place both historically and in the future can be maintained and reinforced by good quality frequent contact. That in turn can be achieved by a defined contact order which will largely encompass Ms W's contact proposals."
She proscribed the move to Cornwall and made a detailed order containing a number of specific issue provisions as well as a detailed contact order. It is perfectly apparent that in designing the specific issue orders designed to safeguard, if not reinforce Miss W's position, the judge drew heavily upon the single sheet at page C360.
"With respect to the parents, Mr A and Mrs A, a virtual state of war had been going on for over 5 years. It appeared that the first response of both parents in the event of even the most minor disagreement was to rush to solicitors or to make applications to the court."
He then refers us to paragraph 24(8), where Wall J drew attention to the fact that the case was one that dealt with both intractable contact and residence disputes cutting across all barriers. Against those findings Mr Cobb submits that paragraphs 124 to 126 of the judge's conclusions are particularly relevant to the disposal of this appeal. Wall J said:
"If these parents were capable of working in harmony, and there were no difficulties about the exercise of shared parental responsibility, I would have followed Mrs P's advice and made no order as to residence. Section 1(5) of the Children Act 1989 requires the court to make no order unless making an order is better for the children concerned than making no order at all. Here, the parents are not, alas, capable of working in harmony. There must, accordingly, be an order. That order, in my judgment, requires the court not only to reflect the reality that the children are dividing their lives equally between their parents, but also to reflect the fact that the parents are equal in the eyes of the law, and have equal duties and responsibilities towards their children."
He then in paragraph 125 noted the risk that making a sole residence order in favour of the father would very likely be misinterpreted. He continued.
"Mr A has already given a strong indication that this is the case. Whilst, as I have already indicated, I regard him as an honourable man, and one who will implement a 50/50 living arrangement, I have no doubt at all that he wishes to be in control, and believes that the arrangements between 30 December 2002 and now have only worked because he has had a sole residence order. That, he believes, is the reason why Mrs A had not made any trouble.
126. I disagree with that analysis. This case has been about control throughout. Mrs A sought to control the children, with seriously adverse consequences for the family. She failed. Control is not what this family needs. What it needs is co-operation. By making a shared residence order the court is making that point. These parents have joint and equal parental responsibility. The residence of the children is shared between them. These facts need to be recognised by an order for shared residence."
In so far as the passages that I have cited reveal any point of principle or any guidance of general application, I would wish to endorse the words of Wall J whole-heartedly. Despite the distinction drawn by Mrs Swindells that Mr and Mrs A had been married, and accordingly had automatic parental responsibility, there is, in my judgment, much force in the passages cited by Mr Cobb applied to the present appeal.
"... wherever possible, the law should confer on a concerned father that stamp of approval because he has shown himself willing and anxious to pick up the responsibility of fatherhood and not to deny or avoid it."
Another line of authority to which I will shortly come demonstrates that what Ward LJ had to say of fathers is of application to same sex parents.
"... the presence of children is a relevant factor in deciding whether a relationship is marriage-like but if the couple are bringing up children together, it is unlikely to matter whether or not they are the biological children of both parties. Both married and unmarried couples, both homosexual and heterosexual, may bring up children together. One or both may have children from another relationship: this is not at all uncommon in lesbian relationships and the court may grant them a shared residence order so that they may share parental responsibility. The lesbian couple may have children by donor insemination who are brought up as the children of them both: it is not uncommon for each of them to bear a child in this way. ...
143. It follows that a homosexual couple whose relationship is marriage-like in the same ways that an unmarried heterosexual couple's relationship is marriage-like are indeed in an analogous situation. Any difference in treatment is based upon their sexual orientation."
(Application for permission to appeal allowed; appeal allowed; further order as agreed between counsel; Appellant's costs to be the subject of a detailed assessment; reporting restrictions).