Jersey Unreported Judgments

[2010]JRC172

royal court

(Samedi Division)

27^th September 2010

Before     :

M. C. St. J. Birt, Esq., Bailiff, and Jurats Le Cornu and Kerley.

 

Advocate M. J. Haines for the Appellant.

Advocate V. Myerson for the Respondent.

judgment

the bailiff:

1.        In this case the appellant ("the mother") appeals against a decision of the Deputy Registrar of the Family Division given on 18th February 2010 whereby she granted a shared residence order between the mother and the respondent (the father) in respect of their child C.  The mother contends that there should be a sole residence order in her favour with contact in favour of the father in the same terms as the periods of residence with the father spelled out in the Deputy Registrar's shared residence order; in other words she does not seek to disturb the time spent by C with each parent but contends it was inappropriate for there to have been a shared residence order.

2.        Both counsel assert that this is a very significant case in terms of when the court will make shared residence orders.  Advocate Haines says that, if a shared residence order is to be made in a case such as this, there will be few cases where they are not made and family practitioners will have to advise their clients to apply for such orders in almost every case.  This would be a dramatic change from the current position.  Advocate Myerson, on the other hand, argues that there has been a considerable change in approach over recent years in England and Wales and that shared residence orders are now routinely made.  She argues that this court should take the opportunity of endorsing that approach in Jersey.

Factual background

3.        C was born in 2008.  C has a half-brother D who is older.  The respondent came to Jersey for work purposes in 2002 and subsequently met the mother through work.  Her relationship with D's father was in difficulties and she and the respondent began a relationship in the latter part of 2007.  They co-habited for approximately five months in 2008 separating in August 2008, prior to C's birth.  The mother then reconciled with D's father although they did not initially live together.  It follows that the mother and the respondent have never lived together with C at any time.

4.        In December 2008, the respondent applied for parental responsibility and either contact or shared residence orders in respect of C.  Initially, there was some doubt as to whether the respondent or D's father was the father of C and on 4th March 2009, an order was made for a DNA test to be carried out.  This showed that the respondent was indeed C's father. 

5.        Since his birth, C has lived with the mother and D.  More recently D's father has also lived with them.  There have been a series of orders for contact with the respondent.  On 4th March 2009, pending receipt of the result of the DNA test, interim contact was ordered at Milli's Child Contact Centre every Sunday.

6.        On 1st April 2009, following receipt of the DNA test, the Deputy Registrar made a consent order for a staged increase in contact.  Contact started at Milli's for three hours on a Sunday;  moved to the respondent collecting from Milli's for otherwise unsupervised contact and finally, from 7th June 2009 onwards, contact was agreed for each Saturday or Sunday from 11 a.m. to 6 p.m.  It was also agreed on 1st April 2009 that the respondent should be granted parental responsibility in respect of C.  There was a further case review hearing on 9th September 2009 at which time, by consent, the contact arrangements were continued until the next hearing in December 2009.

7.        On 16th December 2009, by consent, a further interim order was made which introduced staying contact.  It was ordered that, from early January 2010 onwards, the respondent should have contact with C every Wednesday from 5.30 p.m. until Thursday morning at 8 a.m. (when he would drop C off at the childminder) and for alternate weekends from Friday at 5.30 p.m. until Sunday at 6 p.m.  Contact was also arranged for the Christmas and New Year period.  It was further agreed that the respondent would have two periods of seven consecutive days of contact with C each year.  The hearing of the respondent's application for further contact and shared residence was fixed for 18th February 2010 and a court welfare officer's report was ordered. 

Deputy Registrar's decision

8.        By the time of the hearing on 18th February, it had been agreed that contact should essentially remain as previously ordered; in other words Wednesday nights and alternate weekends together with two consecutive periods of seven days each year.  Two points of detail required decision by the Deputy Registrar, namely whether the time for returning C after a weekend of contact could be moved from Sunday at 6 p.m. to Monday at 8 a.m. and whether the ability of the respondent to take C out of the Island could start in 2010 rather than 2011.  In respect of each of these two matters the court welfare officer's report had recommended against the respondent's application and the Deputy Registrar agreed with this recommendation in her judgment.  No appeal is brought against that part of her decision.

9.        The only other point which fell for decision was the application of the respondent for a shared residence order.  The report of the court welfare officer was firmly against a shared residence order.  The relevant paragraphs of her report said as follows:-

"31. I am aware that [the respondent] has made an application for shared residence.  On the basis of my enquiries for this report I cannot see any reason why this should be considered by the Court.  Such arrangements can be shown not to work out well for children in the long term - children can end up feeling like they have split lives and unable to feel located in any one home.  Just as they have to adjust to differences in routines for contact, they have to do the same for shared residence but without the security of one definite home base.  A further complication can be caused by there being increased exposure to any parental conflict.

32. I think that given C's age, the length of time having been cared for by the mother, the relationship with the half-brother and the maternal grandmother, to introduce a change ... without there being exceptional reasons would be extremely disruptive and likely to jeopardise emotional security."

She returned to the point at paragraph 50 of her report as follows:-

"50. As already stated I do not see any benefit for C being parented on the basis of shared residence basis (sic)."

10.      When the matter came on for hearing, neither party gave evidence.  The only person to give brief evidence was the court welfare officer.  For the most part she was asked questions about the level of contact in relation to the two issues referred to previously.  In relation to shared residence - where, as already stated, she had recommended firmly against it - the solicitor representing the respondent asked only one question, which was whether the court welfare officer was aware of recent English Court of Appeal judgments where they had been struggling with the issue of shared residence and in particular whether she was aware of comments made by Sir Mark Potter, President of the Family Division.  The court welfare officer replied that she did not know of that exact judgment but she was aware that the courts in the United Kingdom were taking a different approach to shared residence than perhaps had been taken in the past.

11.      The Deputy Registrar asked only one question about shared residence which was as follows (page 17 of the transcript):-

"I simply wanted to ask about shared residence because shared residence orders are made in this Court not always but, do you think that there is an age, is it an age-related matter because C's not going to know, you say children can feel like they have split lives and unable to feel located in one home but of course C's not going to know whether there is a shared residence order or not."

The court officer's response was as follows:-

"No C isn't. you're right and uhm, I have reflected on what I said at that point in time with regard to shared residence uhm, I know with older children, for example, if they consider that they have two homes then a shared residence order might be felt appropriate in order to recognise those homes uhm, but I'm not sure what benefit C is going to have in terms of a shared residence order in as much as both parents have parental responsibility so they are both able to make decisions within the eyes of the law about important issues uhm, there is a substantial amount of cont, I mean shared residence is not necessarily about the amount of time the child spends with one, in one home or another I feel that there's a basis there for substantial amount of contact between C and the respondent and hopefully at some stage the respondent's extended family, not just in Jersey but off island.  There is a level of perhaps distress between the parties and I think that perhaps shared residence would, I mean I don't know, I really don't want to upset anything but my understanding is shared residence might enable somebody to then take their child away from the island without permission of the other parent and uhm, I feel that that would not be in C's interests at this stage, as I've already said.  That may not be behind [the respondent's] application at all uhm, it may be that he wishes to recognise his home but I mean in the comments that he made in response to my report I felt it was about him feeling that his voice isn't heard sufficiently in C's life and I feel the way that that can develop is by building up trust, building up communication, building up a substantial relationship and parental responsibility and recognition on the birth certificate, as is going to happen, I think does give him that voice and I'm sure you've heard it before you can have all the court orders in the world but the parents have to go out and make those orders work for the benefit of their children, they need to put their children's interests first and foremost and the less conflict the less difficulties there are between them the better that's going to be."

12.      No other questions were asked of the court welfare officer by either the solicitor for the respondent or by the Deputy Registrar to probe or test the clearly expressed view of the welfare officer that a shared residence order would not be of benefit for C.

13.      In their submissions to the Deputy Registrar, both parties were very brief.  No specific cases were referred to, although the solicitor for the respondent referred in general terms to there having been some English decisions which suggested that shared residence orders could be made when time was not divided equally between the parents, that they were no longer unusual and it was all about recognising that both parents had an equal voice and were equal in the eyes of the law.

14.      The Deputy Registrar retired for a short period and then returned to deliver an ex-tempore judgment which was subsequently reduced to writing and elaborated in one or two respects.  Her full reasons for making a shared residence order, as taken from the written judgment, were as follows:-

"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 [2004] 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 [2008] 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 court's 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 [2008] 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 father's 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 that there had 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)[2009] 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."

The test on appeal

15.      Both counsel agreed that the test to be applied by this court was that established in the recent case of Downes v Marshall [2010] JRC 115B which was summarised by Bailhache Commissioner at paragraph 20 of the judgment as follows:-

"What then should be the test on appeal to this Court?  We wish to underline the fact that we confine ourselves to appeals from the Family Registrar and his deputy pursuant to Article 3 of the Matrimonial Causes (Jersey) Law 1949 where evidence has been heard before them and a discretion has been exercised.  We are not concerned with appeals from the Master of the Royal Court (notwithstanding that they are all Greffier Substitutes), where different considerations may apply.  An appeal from the Family Registrar should only be allowed if there has been a procedural irregularity or if, in exercising his discretion, he has taken into account irrelevant matters, or ignored relevant matters, or otherwise arrived at a conclusion which the Court believes to be wrong.  This test is not precisely the test applied on appeal from this Court to the Court of Appeal.  It reserves a wider discretion for this Court to intervene, but it places nonetheless greater weight on the Registrar's exercise of discretion.  This test will, we think, establish the right balance.  Sufficient weight is to be attributed to the Registrar's findings of fact and exercise of discretion to discourage litigants from seeking a fresh bite at the cherry.  On the other hand, this Court will have the power to intervene if it thinks that the Registrar has gone wrong to the extent that intervention is required in the interests of justice and fairness."

16.      On a technical point, we accept Advocate Myerson's point that, although Bailhache Commissioner refers specifically to decisions by the Registrar under the Matrimonial Causes (Jersey) Law 1949, the test for appeals from decisions made pursuant to the Children (Jersey) Law 2002 ("the 2002 Law") is the same.

The parties' submissions

17.      Advocate Haines put forward three grounds of appeal. 

18.      First, he submitted that the Deputy Registrar had not given reasons for departing from the recommendation of the court welfare officer in relation to the issue of shared residence.  He referred to cases such as Re W (Residence) [1999] 2 FLR 390 where the English Court of Appeal had emphasised the importance of judges providing reasons for departing from the recommendation of a court welfare officer.  He submitted that the judgment of the Deputy Registrar gave no such reasons and furthermore the Deputy Registrar had not tested any misgivings which she may have had about the recommendation when the court welfare officer was giving evidence. 

19.      Secondly, Advocate Haines submitted that the Deputy Registrar did not refer to or properly consider the welfare checklist contained in Article 2(3) of the 2002 Law.  He accepted that it was not a requirement for a court laboriously to set out all the factors in the checklist together with their application in each case, but he referred to the observations of Baroness Hale in Re G [2006] 2 FLR 629 where she said as follows:-

"40. My Lords, it is of course the case that any experienced family judge is well aware of the contents of the statutory checklist and can be assumed to have had regard to it whether or not this is spelled out in a judgment.  However, in any difficult or finely balanced case, as this undoubtedly was, it is a great help to address each of the factors in the list, along with any others which may be relevant, so as to ensure that no particular feature of the case is given more weight than it should properly bear.  This is perhaps particularly important in any case where the real concern is that the children's primary carer is reluctant or unwilling to acknowledge the importance of another parent in the children's lives."

20.      Thirdly, Advocate Haines submitted that the decision of the Deputy Registrar was plainly wrong.  He referred to the fact that C had never lived with the mother and the respondent together because the relationship had broken down before he was born.  His home throughout his life had been with the mother and D.  Contact, other than at Milli's, had only begun in May 2009 and overnight contact had only been taking place since the end of 2009, a matter of a few weeks before the hearing.  The reality of the position was that C lived with the mother and visited the respondent.  As to the suggestion that there had been communication difficulties between the parties and that a shared residence order would have the effect of conveying the message that neither parent was in control and that the court expected parents to cooperate with each other for the benefit of the child, there was no evidence or finding that that was required in this case.  On the contrary, the mother had agreed levels of contact which the court welfare officer had described as being at a higher level than she would have suggested.  But even at this level, according to Advocate Haines, C still spent only some 23% of his time with the respondent.

21.      Advocate Haines referred to recent case law in England and Wales - to which we shall refer later - and submitted that, although it was clear that a shared residence order was made more readily than in the past, such an order still had to reflect the practical realities of the situation or there had to be some other reason for concluding that such an order was in the child's best interests as opposed to the more conventional sole residence order with contact to the other parent.  He argued strongly that, if a shared residence order was appropriate for the present case, it was hard to envisage many cases where it would not be appropriate.  This would mark a fundamental shift in the court's approach.  His firm undertook a considerable amount of matrimonial work and he and his colleagues could only recall one previous case where a shared residence order had been made.  If the court upheld the Deputy Registrar's decision in this case, it would require a fundamental re-think on the part of lawyers advising clients on such matters. 

22.      In relation to the first ground, Advocate Myerson, on behalf of the father, accepted that judges should give reasons for departing from the recommendation of a court welfare officer but said that there was considerable flexibility in how this was achieved.  She referred to the case of Re V (Residence: Review) [1995] 2 FLR 1010.  She argued that the Deputy Registrar had specifically acknowledged in her judgment that she was departing from the recommendation and that, taken as a whole, there was sufficient reasoning in the judgment to explain her decision to do so.  Thus the Deputy Registrar had expressly commented on the following:-

(i)        The existence of an issue as to each parent accepting the other parent's role in C's life;

(ii)       The advantage that such an order conveys the court's message that neither parent is in control and that parents must cooperate;

(iii)      The absence of malign intent on the part of the father in this case;

(iv)      The fact that C would not be aware of the label (shared residence or otherwise) applying to how his time was divided between his parents;

(v)       The absence of any need for there to be 'unusual' or 'exceptional' circumstances before a shared residence order is made;  and,

(vi)      The absence of any pre-requisite of equal time before a shared residence order is made.

23.      As to the second ground of appeal, she submitted that it was clear from the authorities that there was no requirement for a judge to spell out detailed reasoning in relation to each aspect of the welfare checklist or even to state that he has had regard to the welfare checklist.  This can be assumed.  It is merely 'helpful', particularly in 'any difficult or finely balanced case'.  In this case the Deputy Registrar had the benefit of reading a welfare report which expressly dealt with each element of the welfare checklist and was an experienced family judge.  Her judgment provided the reasons for her having made the order where clearly the child's best interests were considered.  As a supplementary point, Advocate Myerson argued that, if it was felt that the Deputy Registrar had erred in not dealing specifically with the welfare checklist, it was incumbent upon the appellant's advocate to have brought this to the attention of the Deputy Registrar at the time of the judgment, at which time she could easily have dealt expressly with each factor in the checklist (see Re M (Fact-Finding Hearing: Burden of Proof) [2009] 1 FLR 1177.

24.      As to the third ground of appeal, Advocate Myerson emphasised that a decision as to whether to make a shared residence order or an order for sole residence with contact was a discretionary decision upon which different judges could reasonably reach different decisions in relation to a particular case.  In accordance with the decision in Downes, this court could not intervene merely because it concluded that it would have reached a different decision.  The court had to go further and find that the decision was wrong to such an extent that justice and fairness required it to intervene.  This could not possibly be said to be the case here, particularly having regard to the developing jurisprudence on shared residence orders in the English courts. 

Discussion

Ground 1

25.      We consider first whether the Deputy Registrar gave sufficient reasons for departing from the recommendation of the court welfare officer. 

26.      In Re W (Residence) (supra)Thorpe LJ said this at page 394:-

"In relation to the role of the court welfare officer, it cannot be too strongly emphasised that in private law proceedings the court welfare service is the principal support service available to the judge in the determination of these difficult cases.  It is of the utmost importance that there should be free co-operation between the skilled investigator, with the primary task of assessing not only factual situations but also attachments, and the judge with the ultimate responsibility of making the decision.  Judges are hugely dependent upon the contribution that can be made by the welfare officer, who has the opportunity to visit the home and to see the grown-ups and the children in much less artificial circumstances than the judge can ever do.  It is for that very good practical reason that authority has established clearly, since at least the decision of this court in W v W (A minor: Custody Appeal) [1988] 2 FLR 505, 513, that judges are not entitled to depart from the recommendation of an experienced court welfare officer without at least reasoning that departure.  The more recent decision of this court in Re A (Children: 1959 UN Declaration) [1998] 1 FLR 354 emphasises the importance of the judge testing any misgivings that he may have developed from the written report with the court welfare officer in the witness box.  This judge had the opportunity to voice such misgivings as he had developed during the welfare officer's oral evidence and he did not do so."

27.      It is clear however that there is flexibility in how this duty is approached.  Thus in Re V (Residence: Review) (supra) Wall J said this at page 1019:-  

"It is thus well established that one of the bases upon which this court can interfere is if there is an error in the balancing exercise - that is to say the judge has given no or no adequate weight to particular factors or too much weight to other factors.  The recommendation of the court welfare officer must be seen in this context.  What matter in every case are the judge's reasons for his decision.  If those reasons are sound, then the exercise of his discretion is likely to be sound; if the reasons given by the judge either explain or constitute a sound basis for dissenting from the court welfare officer's recommendation, then, generally speaking, the balancing exercise will have been performed and the exercise of judicial discretion will not be vitiated by the failure to state in terms what Mr Eccles described in the course of his submissions as a 'formula' - that formula being: 'I disagree with the court welfare officer because ...'.

Nothing within this judgment should be taken as in any way detracting from the general proposition that it is good practice for any tribunal which disagrees with a recommendation made by a court welfare officer to deal with the reasons advanced by the court welfare officer adequately, so as to demonstrate why the court is departing from his view.  But we do not think that in all cases the judge should slavishly follow Mr Eccles' 'formula'.  What is vital is that the parties should understand in terms why the recommendations of the independent officer appointed by the court to advise it are not being accepted.  It is a courtesy to the court welfare officer that he or she should know.  However, provided the judgment read as a whole directly or by necessary inference discloses the reasons for departure, its precise format and phraseology must be a matter for the judge." 

28.      We endorse the sentiments of both of those decisions.  The question is whether in this case the Deputy Registrar gave sufficient reasons for departing from the clearly expressed view of the welfare officer that she could see no reason why a shared residence order should be considered by the court and could not see any benefit for C from such an order. 

29.      Advocate Myerson accepts that the Deputy Registrar did not adopt the course of specifically spelling out why she was rejecting the court welfare officer's view.  She argues however that the six reasons set out in para 22 above appear from the judgment and are sufficient.

30.      The difficulty is that no one asked any questions of any significance of the court welfare officer when she gave evidence.  The respondent's solicitor confined himself to enquiring whether she was aware of recent English decisions, to which she replied that, in general terms, she was.  The only question from the Deputy Registrar related to the fact that, at his present age, C would not appreciate the difference between a shared residence order and an order for sole residence with contact.  That of course is readily apparent. 

31.      In our judgment, in circumstances where the court welfare officer had come out in strong terms against a shared residence order, it was incumbent upon those representing the father before the Deputy Registrar to explore the position and test the welfare officer's views.  Furthermore, if the Deputy Registrar had misgivings as to the correctness of the welfare officer's recommendation, she should have explored those misgivings with the welfare officer when she gave evidence, as stated by Thorpe LJ in the passage quoted at para 26 above.  In argument before us, Advocate Myerson suggested that the welfare officer's report read as if she was confusing a shared residence order with an order for equal residence.  That seems very unlikely given her response to the Deputy Registrar in oral evidence that "shared residence is not necessarily about the amount of time the child spends with one, in one home or another..."  The fact remains that no one ever asked her if she was confusing these matters. 

32.      We appreciate that the Deputy Registrar's judgment was delivered ex-tempore and judges are not to be held to standards of perfection in judgments, whether reserved or ex-tempore.  Nevertheless, it is in our judgment impossible to extract from the Deputy Registrar's decision her reasons for differing from the Welfare Officer.  Most of what she says in her judgment relates to statements of principle, but she does not relate them to the facts of this case.  She refers to the fact that there is an issue about each parent accepting the other parent's role in C's life but makes no specific or detailed finding in relation to this.  The only other specific reason which she gives is that there is no malign intent by the father in seeking a shared residence order.  While such a malign intent may be a reason not to make a shared residence order, its absence is not in itself a reason to make such an order.  All in all, one is left in a state of uncertainty as to why the Deputy Registrar differed from the clearly expressed view of the welfare officer.  That does not of course of itself mean that the appeal must be allowed but it does mean that this court must scrutinise the decision extremely carefully in order to decide whether it should stand notwithstanding that the decision was not in accordance with the recommendation of the court welfare officer and the Deputy Registrar has not given adequate reasons for differing from that recommendation.

Ground 2

33.      We can deal with the second ground very briefly.  We respectfully agree with Baroness Hale in the passage quoted at para 19 above that an experienced family judge - as the Deputy Registrar is - can be assumed to have had regard to the welfare checklist whether or not it is spelled out in the judgment.  We find it difficult to conceive of circumstances where a failure to do so would of itself amount to a reason for allowing an appeal.  This court is ultimately concerned with whether the decision of the court below is liable to be overturned on one or more of the grounds set out in Downes.  Accordingly we turn to consider that issue. 

Ground 3

34.      This requires us to consider when shared residence orders should be made.  We were informed by counsel that there has been no previous consideration of this topic in Jersey and accordingly we were referred to a number of English cases on the basis that the 2002 Law is very similar to the equivalent English statutory provision.  Following the hearing, we were supplied with certain additional literature, namely an article by Gilmore in 2010 Fam Law 285 entitled Shared Residence:  A Summary of the Court's Guidance, paras 5.17 - 5.23 of White Carr and Lowe:  the Children Act in Practice and paras 1704 - 1717 of Butterworths Family Law Service.  We found the first of these to be of particular assistance.

35.      There is no doubt that, in England and Wales, there has been a change of approach in relation to shared residence over the last ten years or so.  In the past they were comparatively rare;  nowadays they are made more frequently.  This is reflected in the comment of Wilson LJ in Re W (Shared Residence Order) [2009] 2 FLR 436 para 13 where he said:-

"With respect to Mr. Yeo, I see no subsisting foundation for his submission to us today that, unless the time to be spent by a child in the two households is close to being equal, unusual circumstances are required before a shared residence order should be made.  Fifteen years ago his submission would have been valid:  see A v A (Minors) (Shared Residence Order) [1994] 1 FLR 669, per Butler-Sloss LJ at 667.  But at any rate for the last eight years the better view has been that, while of course a need remains for the demonstration of circumstances which positively indicate that the child's welfare would thereby be served, there is no such gloss on the appropriateness of an order for shared residence as would be reflected by the words 'unusual' or indeed 'exceptional' ..."

36.      However, it is important to recall that such orders are dealing essentially with where a child lives, not questions of status.  Thus, in Re A (Children) (Shared Residence) 2001 [EWCA] Civ 1795, Hale LJ said this at para 17:-

"17.    I completely appreciate why the Recorder wished to make a shared residence order in this case.  He wanted to recognise the equal status of each parent in relation to all three of these children.  He may, although he does not say so, have been afraid that the father would not recognise this if he did not make a shared residence order in relation to all three children.  But the law is that the parents already have shared parental responsibility for their children.  They have equal and independent power to exercise that parental responsibility.  A residence order is about where a child is to live.  It is very difficult to make such an order about a child who is not only not living with one of the parents but is, for the foreseeable future, unlikely even to visit with that parent.  Notwithstanding, therefore, that that parent does not wish there to be any distinction between the children, because she does not wish N to feel rejected by her, the court's order has to be designed to reflect the real position on the ground.  That being the case, in my view the shared residence order in relation to N was inappropriate.  For that order there should be substituted an order that N is to live with his father and have contact with his mother in the same terms as the order laid down by the Learned Recorder." (emphasis added)

37.      The observations of Hale LJ as to the need for the court's order to reflect the real position on the ground have been applied consistently.  In A v A (Shared Residence) [2004] 1 FLR 1195, the parents of two children aged 9 and 11 had been engaged in bitter proceedings about the children over a protracted period.  By the time of the final hearing, the children were spending fifty per cent of their time with each parent and this was acceptable to the parents and children alike.  The father nevertheless wanted to maintain the sole residence order which he had previously been granted whereas the mother wished there to be a shared residence order.  Wall J summarised the position in relation to shared residence orders at para 119 of his judgment as follows:-

"119.   D v D makes it clear that a shared residence order is an order that children live with both parents.  It must, therefore, reflect the reality of the children's lives.  Where children are living with one parent and are either not seeing the other parent or the amount of time to be spent with the other parent is limited or undecided, there cannot be a shared residence order.  However, where children are spending a substantial amount of time with both their parents, a shared residence order reflects the reality of the children's lives.  It is not necessarily to be considered an exceptional order and should be made if it is in the best interests of the children concerned."  (emphasis added)

The judgment held that in terms of the time spent in each home and the importance of each home to the children, this was a prime case for a shared residence order.  Such an order directly reflected the situation on the ground because they spent equal time with each parent.  The judge went on to say that there was an additional reason in that case because the father was very controlling.  Because the parents were incapable of working in harmony, a court order which reflected both the reality of the children's lives and the fact that the parents were equal in the eyes of the law and had equal duties and responsibilities towards their children was needed.  There was a risk that a sole residence order could be misinterpreted by the father as enabling control by one parent, when what the family needed was co-operation as recognised by a shared residence order.

38.      In Re H (Children) [2009] EWCA Civ 902 Ward LJ gave a helpful summary of the position.  That case involved two children aged 8 and 7 who lived predominately with their mother in Cornwall but had generous staying contact with their father who lived in Loughborough.  The judge below had made a sole residence order in favour of the mother and the father appealed seeking a shared residence order.  His appeal was dismissed and in the course of his judgment Ward LJ said this at paragraph 13:-

"13.    So the court, as Thorpe LJ said there and has been repeatedly said elsewhere, for example by Wall LJ himself, then in the Family Division in the case of A v A [2004] 1 FLR 1195, where his Lordship was concerned to point out that a shared residence order must reflect the reality of the children's lives.  Where the children are spending a substantial amount of time with both parents, a shared residence order reflects the reality of their lives.  Hale LJ had made the same point in the case of Re A [2001] FLR 495, that a residence order is about where a child is to live and it is not about status.  I want to emphasise that here the father's status is recognised by the parental responsibility agreement and order which has been made.  That gives him equal say in how the children are to be brought up, so that when they are with him he will determine when they brush their teeth and when they go to bed and whether they have cornflakes or porridge for breakfast.  The day-to-day decisions of their lives rest with whomever they are living with at the time.  Any major decision about their future, if it cannot be agreed, is for the court to resolve on complaint by one about the decision to be taken by the other.  So in terms of status he has it, and shared residence is not going to affect status.  Shared residence is about the reality of where they live.  And the best test I can think of, though my words of wisdom on the subject do not seem, fortunately, as readily to find their way into the law reports, my practical test is to postulate the question, ask the children, where do you live?  If the answer is 'I live with my mummy but I go and stay with my daddy regularly', then you have the answer to your problem.  That answers means a residence order with mummy and contact with daddy, but if the situation truly is such that the children say, 'oh we live with mummy for part of the time and with daddy for the other part of the time', then you have the justification for making a shared residence order."  (emphasis added)

39.      Finally, we would refer to Re A (Joint Residence:  Parental Responsibility) [2008] 2 FLR 1593 where Sir Mark Potter P said this at para 66:-

"66.    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. ..."   (emphasis added)

Potter P went on to say that a third category of case where it might be appropriate to make a shared residence order was where this was the only method of conferring parental responsibility on someone who would otherwise lack it e.g. a stepfather.  However that third category is exceptional and has no application in this case.  We therefore say no more about it.

40.      We draw from these cases the principle that shared residence orders should be made in two categories of case (ignoring the third for the moment).  The first is where such an order reflects the practical realities of the children's lives; also referred to by some judges as the situation on the ground.  The importance of this requirement has been repeatedly stated, as is shown from the emphasised passages in the extracts cited earlier.  The requirement for shared residence to reflect the practical realities does not require there to be an equal division of time spent between the parents, but it requires the court to be able to answer Ward LJ's question in Re H (see para 38 above) in the second manner which he gives, namely 'oh we live with mummy for part of the time and with daddy for the other part of the time'.

41.      The Deputy Registrar does not address this important aspect in her judgment.  In our view this is a case where C lives with his mother and visits the respondent.  The parties have never lived together as a family.  They had separated by the time C was born.  C has throughout lived with the mother and the half-brother, D.  Apart from one occasion, there was no contact between C and the respondent until March 2009.  For a while there was contact at Milli's every Sunday, but it was only at the end of April 2009 that the respondent had contact outside Milli's and from June onwards it was for seven hours once a week on either Saturday or Sunday.  Following the hearing on 16th December, staying contact was introduced and since then it has taken place as described previously, namely every Wednesday night and alternate weekends from Friday at 5.30 p.m. to Sunday at 6.00 p.m.  In our judgment this is a classic example of where Ward LJ's question referred to above would be answered by the child saying - if old enough - 'I live with mummy but visit daddy'.  Accordingly, although the Deputy Registrar did not state this as being a reason for making a shared residence order, if her reason was that it reflected the practical realities of the situation, we consider that that was an erroneous finding. 

42.      The second ground upon which a shared residence order may be made is that referred to by Potter P, namely where it is psychologically beneficial to the parents in emphasising the equality of their position and responsibilities.  This second category has been subject to some criticism (e.g. Gilmore (supra) at p 289) on the ground that, read literally, it suggests that a benefit to the parents alone would be a good reason to make a shared residence order.  Given that the child's welfare must always be the paramount consideration in such cases, we do not believe the President was intending to suggest this and we have no doubt that, although he did not spell it out specifically, the President was saying that there may be benefit to the child as a result of the benefit to the parents in emphasising the equality of their position and responsibilities.

43.      That is consistent with the observations of Wilson LJ in Re W (Shared Residence Order) [2009] 2 FLR 436, which came after the President's observations in Re A.  Wilson LJ elaborated the position as follows:-

"14.    It might, however, be worthwhile for me to comment briefly upon a passage in another judgment of Wall J, as he then was, because the recorder herself adverted to it.  The passage is in his judgment in A v A (Shared Residence) [2004] EWHC 142 (Fam) [2004] 1 FLR 1195, at para [124], as follows:

'If these parents were capable of working in harmony, and there were no difficulties about the exercise of shared parental responsibility, I would have ... made no order as to residence ...  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.'

The above passage is sometimes understood to be an indication that the inability of parents to work in harmony is a reason for making an order for shared residence.  Although it is now clear that inability to work in harmony is not a reason for declining to make an order for shared residence, I do not believe that Wall LJ there meant to imply that it was, by itself, a reason for making an order for shared, rather than sole, residence.  I believe that he was there indicating that the inability of the parents to work in harmony meant that, rather than that he should make no order, it was better for the children that he should make some order or other in relation to residence;  and that, since in that case the children were to divide their lives equally between the parents and since it was important to stress that the parents had equal responsibilities towards them, the order more greatly in the interests of the children was an order for shared residence rather than orders for sole residence and for contact.  In my view the headnote of that decision in the Family Law Reports may to some extent have conduced to the misunderstanding to which I have referred.  I should make clear, however, that, although therefore an inability of parents to work in harmony does not, by itself, amount to a reason for making a shared residence order, a possible consequence of their inability to do so, namely the deliberate and sustained marginalisation of one parent by the other, may sometimes do so.

It is true, although Mr Yeo has not presented his argument in quite this way this morning, that the recorder did note - and did appear to rely upon the fact - that these parents had proved unable to work in harmony in relation to the arrangements for K during the previous 2 years.  But, although, of course, she did not use the President's words, the nub of her decision was that a shared order would be psychologically beneficial to the parents in emphasising the equality of their responsibilities towards K and thus that it would indirectly benefit her, being a child who clearly not only needed but also wanted a full relationship with both of them."

Advocate Myerson cited that case as being factually similar to the present case.  However, in that case the court welfare officer was not opposed to a shared residence order, the child and its parents had lived together as a family for 4 years before separation, and the judge found that the second basis referred to by Potter P was applicable.

44.      The question therefore is whether the circumstances of the present case are such that it would benefit C for there to be a shared residence order because it would be psychologically beneficial to the parents in emphasising the equality of their position and responsibilities.  It would seem that the Deputy Registrar may have made her order on this ground, but in our judgment, there is insufficient evidence to suggest that it would be beneficial for C for a shared residence order to be made on this basis.  It is true that, in her report, the welfare officer referred to communication problems in the past (paras 8 and 14) but she also said that both parties felt that the situation had improved.  The fact is that, although a couple of minor aspects required resolution by the Deputy Registrar, the vast majority of the orders for contact since April 2009 have been made by consent; and since December 2009 the parties have agreed a generous level of contact, which the welfare officer suggested went beyond that which she would perhaps professionally have suggested and which she felt some child psychologists might feel was not suitable for a child of C's age (in that it was too much).  In those circumstances, it is hard to see that there is any evidence to suggest that the mother does not recognise the father's role or is seeking to exert control or otherwise not co-operate for C's benefit.  Both parties expressed an intention through their advocates to work in harmony for C's benefit and we see no reason to doubt that intention.  There is no evidence to suggest deliberate marginalisation by the mother.  The welfare officer was against a shared residence order despite her acknowledgement of communication difficulties.  In all the circumstances we do not think that the evidence supports this second ground for making a shared residence order. 

45.      We remind ourselves that the test on appeal is not whether we would ourselves have made the same order but whether we are satisfied that it is wrong to such an extent that we must intervene.  We are satisfied that it is.  This was a case where there were extremely brief submissions from the parties before the Deputy Registrar on the arguments for and against shared residence, the court welfare officer recommended firmly against such an order, there was no testing of the court welfare officer's view and the reasons provided by the Deputy Registrar for deciding to make such an order are not clear.  We accept Advocate Haines' submission that, if shared residence were to be ordered in this case, it is hard to see that there would be many cases where shared residence would not be ordered.  The amount of contact with the father (being the parent who did not have primary care) is at a level which is very commonly ordered or agreed and there is nothing particularly unusual about the relationship between the parents so as to bring the case within the second category mentioned by Potter P.

46.      We therefore allow the appeal and make an order for sole residence in favour of the mother and contact with the respondent at the same level as set out in the order of the Deputy Registrar (albeit that refers to periods of residence rather than contact).  In doing so, we emphasise what was said in some of the cases referred to above.  A residence order is not about status.  That is dealt with by parental responsibility orders and the father has parental responsibility in respect of C.  His status as a parent is therefore equal to that of the mother and our decision today has no effect on his status or importance as a parent.  A residence order is concerned with where a child lives.

47.      In view of the fact that both counsel argued that this case would be of considerable importance for the profession, we sound a cautionary note.  All cases of this nature are fact specific.  Our decision in this case is related solely to what is in C's best interests.  As to the principles to be applied in future in relation to shared residence, we hope that this judgment will be of assistance in establishing that shared residence orders should be made on one or other (or both) of the two grounds described by Potter P as elaborated above.  We accept also that the landscape may be changing.  For example, we were referred to the observation of Mostyn J in Re AR (a child:  relocation) [2010] All ER (D) 236 where the judge went as far as to say that a shared residence order nowadays is the rule rather than the exception, even where the quantum of care undertaken by each parent is decidedly unequal.  We do not think that that observation can stand with the principles enunciated by the Court of Appeal in the cases which we have cited and we do not think that that is the position in Jersey at present.  It may well be that matters continue to develop and shared residence orders may become more common than they are at present.  However, this is not the case in which to effect a radical change in practice.  As already mentioned, there was little argument in the court below, the court welfare officer was against a shared residence order and she did not have the opportunity of elaborating or defending her views in evidence.  Should the case law develop further in England or Wales, this court can consider, in the appropriate case after full consideration of the evidence, whether to follow suit or not.

Authorities

In the Matter of C [2010] JRC 041.

Downes v Marshall [2010] JRC 115B.

Matrimonial Causes (Jersey) Law 1949.

Children (Jersey) Law 2002.

Re W (Residence) [1999] 2 FLR 390.

Re G [2006] 2 FLR 629.

Re V (Residence: Review) [1995] 2 FLR 1010.

Re M (Fact-Finding Hearing: Burden of Proof) [2009] 1 FLR 1177.

Shared Residence:  A Summary of the Court's Guidance.

White Carr and Lowe:  the Children Act in Practice.

Butterworths Family Law Service.

Re W (Shared Residence Order) [2009] 2 FLR 436.

Re A (Children) (Shared Residence) 2001 [EWCA] Civ 1795.

A v A (Shared Residence) [2004] 1 FLR 1195.

Re H (Children) [2009] EWCA Civ 902.

Re A (Joint Residence:  Parental Responsibility) [2008] 2 FLR 1593.

Re W (Shared Residence Order) [2009] 2 FLR 436.

Re AR (a child:  relocation) [2010] All ER (D) 236.