COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
RECORDER SIMON BARKER QC
BRIGHTON COUNTY COURT
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE PATTEN
LADY JUSTICE BLACK
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Mr Alex Verdan QC and Ms Sam King (instructed by Mischon De Reya) for the Respondent
Hearing dates : 8th November 2010
Crown Copyright ©
Lady Justice Black :
i) The shared residence order in favour of M and F did not reflect the reality of the children's lives. M and L were and always have been their primary carers, the children's "nuclear family" as Ms Venters put it. She submitted that the Recorder should have made a joint residence order to the two of them recognising that and that he was wrong to grant a shared residence order to M and F which served to marginalise L.
ii) The increase in the time spent with F for which the order provided failed to take into account N's views on the subject, the CAFCASS officer's recommendation against such an order in N's case, and also that it was foreseeable, Ms Venters submitted, that N would react adversely to the increase. More generally, she argued that the amount of time that the Recorder provided was to be spent with F was too much and was not in the children's interests.
iii) The order was too complicated for the parties, who do not communicate well with each other, to manage.
Order too complicated?
Fact finding inadequate?
"they know who their parents are, they know the role that L plays in their lives, and validation or labelling is an issue for or, more accurately, between the parents and adults, not the children."
Whatever the initial intentions of the parties when the children were conceived, things had moved on with time and the Recorder's orders had to accommodate the position as it actually was rather than the position that the adults wanted or had originally planned.
33. Having listened carefully to all the oral evidence and having considered the documentary evidence, I have no hesitation in accepting that the incident occurred at the time when N was returning home from contact. Whether F was still present to witness the event or had driven off leaving G and N to cross the road on their own, which road is a narrow and not very busy road but one where vision is somewhat restricted, is unclear. However, either way F was neglectful of his responsibility to return the children home and either he lied about his knowledge of what had occurred or he showed little regard for what had occurred when he was subsequently informed of it."
Shared residence order inappropriate?
"The making of a shared residence order is no longer the unusual order which once it was. Following the implementation of the Children Act 1989 and in the light of s 11(4) of that Act which provides that the court may make residence orders in favour of more than one person, whether living in the same household or not, the making of such an order has become increasingly common. It is now recognised by the court that a shared residence order may be regarded as appropriate where it provides legal confirmation of the factual reality of a child's life or where, in a case where one party has the primary care of a child, it may be psychologically beneficial to the parents in emphasising the equality of their position and responsibilities."
N's views/CAFCASS advice given insufficient weight?
"N would like more time but not more time overnight although N was not able, or perhaps not willing, to articulate her reasoning which leaves open a range of possibilities".
He was plainly mindful of Mr Bridger's evidence on the subject of time with F, which he set out particularly at paragraphs 35 and 36 of the judgment.
Lord Justice Patten:
Master of the Rolls: