18th February 2010
J. M. O'Sullivan, Deputy Registrar, sitting alone.
IN THE MATTER OF SHARED RESIDENCE OF C
Mr C. G. Hillier for the Applicant.
Advocate M. J. Haines for the Respondent.
the deputy registrar:
1. This case started as an application by the father for parental responsibility and either contact or shared residence. Parental responsibility has been agreed and on Monday I am told the parties will be attending the Registrar of Births, Deaths and Marriages for the child's name to go the birth certificate.
2. I have heard submissions from the parties Lawyers and heard from the court welfare officer who has filed an addendum report. I am pleased to say that the parties have reached a measure of agreement. There have been problems about communication which have been brought to my attention, but the parties have broadly agreed a pattern of contact, as set out in my previous order. The issue is whether the father will return C on a Monday morning after contact, which in fact would give him three nights staying contact and also whether he can take C off-island during 2010, it being agreed that this could happen in 2011. He says that this will reduce the necessity of meeting with the mother. The court welfare officer, in her report, recommended two nights contact; little and often was her view. She felt that two nights were reasonable and indeed felt that the present length of contact is quite lengthy and some child psychologists may say the current arrangements are too long.
3. The court welfare officer stated that there needs to be a period of stability with the current arrangements continuing at present given that they have changed over 2009. In view of this, I am not going to change the current arrangements, so that C will have to be brought back on the Sunday evening. With regard to the travel arrangements during 2010, the father wants Boxing Day away from Jersey and possibly one or two weekends; this is opposed by the mother. Travel in 2011 has been agreed. The court welfare officer, in her report, again emphasised the routine for contact; she felt that C needed a consistent pattern. Mr Hillier, for the father, said it would be a year to Boxing Day from the previous order, but the court welfare officer felt it would be unsettling for the one night away and indeed, it could even be unsettling for C to go away with mother during 2010. She did agree that there were no problems about bonding by C with the father but she felt that after the year, C could travel away from Jersey with the father and so I am not going to change the current order.
4. In terms of shared residence, the court welfare officer did not recommend a shared residence order. Both parties have parental responsibility. There is however an issue about each parent accepting the other parent's role in C's life and sadly there has been some dispute about this. I have looked at A-v-A (Shared Residence)  1 FLR 1195 where Mr Justice Wall clearly sets out a schedule of items in relation to the exercise of parental responsibility. I think it is helpful for lawyers, if they have not already done so, to bring this schedule to their clients' attention. The issue as to whether or not a shared residence order should be made is a matter that this Court deals with from time to time. It was submitted by Mr Hillier that shared residence does not mean there should be equality of time. In any case C would not know if there was or was not a shared residence order; the court welfare officer was asked about this and confirmed that this would be so. I refer to the case Re A (Child: Joint Residence/Parental Responsibility)  EWCA Civ 867 in which the President of the Family Division offers guidance as to the use of shared residence including in the case of A-v-A in which Mr Justice Wall said:-
"such an order emphasises the fact that both parents are equal in the eyes of the law and that they have equal duties and responsibilities".
A shared residence order can have the additional advantage of conveying the courts message that neither parent is in control and that the courts expect parents to co-operate with each other for the benefit of their children.
In the case of Re K (Shared Residence Order)  2 FLR 380 there was a child who was almost 3 who had Mosaic Down's Syndrome; the child spent 40% of the time with the father. The father was not at first instance given shared residence and there was an appeal and on that appeal a shared residence order was made and it was held that:-
"It was possible for a shared residence order to serve the interests of the child even if the division of the child's time between the two homes was not equal. Therefore the two aspects of the application as to the contact arrangements and a shared residence order did not fall or stand together but had to be considered separately. The convenient course was for the court to hear both issues together but to rule first on the optimum division of time and then, in the light of ruling, to proceed to consider whether the optimum division of time should be expressed as a shared residence or a contact order."
It was further held that:-
"The court was to be alert to any malign intent on the part of a parent to use an application for shared residence order as a means of interfering with or disrupting the other parent's role in the management of the child's life, however, although it was profoundly regrettable that the father had to date been unable to give the mother due credit for her achievements in caring for the child, no such intent has been established on the fathers part. On the facts, a shared residence order should be made in order to emphasise that the child had two parents of equal importance in the overall direction of his life, notwithstanding the division of his time between the two homes would remain slightly unequal".
5. I heard submissions from both parties, although no specific case law was referred to me. The parents have not been able to reach a final agreement, and the court welfare officer said there has been a level of distress between the parties. I do not feel that there has been a malign intent by the father to seek a shared residence order. In Re W (Shared Residence Order)  2 FLR 436 the Court of Appeal held that circumstances did not need to be "unusual" or "exceptional" for a shared residence order to be made. I am going to make a shared residence order even though it is not in accordance with the recommendation of the court welfare officer. I do not know if the parties want to address me on that.
6. I was referred to Articles 14(1) and 14(2) of the Children (Jersey) Law 2002 and this is in respect of taking a child out of the jurisdiction for a period of up to a month. Mr Hillier did say to me that his client would agree to forgo that for the period of 2010 so I am going to note that.
7. There is no costs application.
A-v-A (Shared Residence)  1 FLR 1195.
Re A (Child: Joint Residence/Parental Responsibility)  EWCA Civ 867.
Re K (Shared Residence Order)  2 FLR 380.
Children (Jersey) Law 2002.
Re W (Shared Residence Order)  2 FLR 436.