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Re C (A Child) (Shared Residence Order) [2006] EWCA Civ 235

Father’s appeal against refusal of shared residence order allowed.

Re C (A Child) (Shared Residence Order) [2006] EWCA Civ 235

Court of Appeal: Thorpe and Wall LJJ (18 January 2006)

Father's appeal against refusal of shared residence order allowed.

The mother and father were married in April 2000 and their child was born in July 2000. The marriage broke down in 2002, and the mother and child moved to the town where the mother's family lived. Following separation, contact between the father and child took place every weekend; in 2004, an order was made in Children Act proceedings for contact every weekend; and, in April 2005, there was an interim order by consent for contact on alternate weekends plus Wednesday afternoons after school.

In June 2005, the father moved to live in a village near the mother's home, only about a mile and a half from the child's school, and applied to the court for a shared residence order and an increase in the nights during school terms that the child stayed over at his house. The judge rejected the application for a shared residence order and declined to increase the time the child spent with his father during school terms.

The father appealed on the grounds that the judge (1) had misdirected himself in law in refusing the shared residence order, and (2) had wrongly concluded on the facts that an increase in the child's school nights with the father would be disadvantageous and confusing.

The court reviewed the written and oral evidence before the judge, and the judge's reasoning.

Held, allowing the appeal, that the judge has misinterpreted the authorities in refusing the shared residence order, and the judge's discretionary conclusion as to the effect of the child's increased contact with the father could not stand.

As to the judge's refusal of the order, the court stated that the whole tenor of recent authority had been to liberate trial judges to elect for a regime of shared residence, if the circumstances and the reality of the case supported that conclusion and if that conclusion were consistent with the paramount welfare consideration; in this case, the judge had been wrong to identify only two restrictive sets of circumstances in which a shared residence order would be appropriate.

As regards the refusal to increase contact, the court found that the judge had only taken into account a written report by the CAFCASS officer in which no precise recommendation was made; however, the CAFCASS officer had given oral evidence to the effect that the child would benefit from his father being elevated from a contact parent into a parent with a full parenting role. The judge had an obligation to explain carefully and fully his rejection of those views; and, by not referring at all to the oral evidence of the CAFCASS officer, his rejection of the recommendation lay, quite simply, unexplained. The court considered that the father's proposal for increased contact squarely reflected the objective which the CAFCASS officer had identified and supported in her oral evidence, and that should be supported and endorsed by the court.

Finally, in concluding that this was a classic case for a shared residence order, the court exercised its independent discretion to make the order that the judge rejected, rather than ordering a retrial before a different judge, which both parties to the appeal opposed.

Read the full text of the judgment here