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A, B and C (Children: Nesting Arrangement) [2022] EWCA Civ 68

The Court of Appeal dismisses a father’s appeal within private law children proceedings against an interim order made by Cohen J, which had varied a ‘nesting’ arrangement.

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The three subject children (9, 15 and 17) lived with both parents under a "2:2:5:5" nesting pattern, whereby each party would take it in turns to vacate the former family home for periods of two or five days every fortnight, leaving the other parent at home with care of the children.

The allocated first instance judge, Cohen J, had first remarked on the apparent unsuitability (in his view) of this arrangement within financial remedy proceedings in November 2019. In May 2020, the mother applied for a child arrangements order. The status quo continued in the interim.

The mother supported a move towards shared living arrangements between two households. The father supported the continuation of the nesting arrangement. The children's wishes varied in their detail, but each wanted to remain living in the former family home. An independent social worker, instructed as an expert, reported that the current arrangements were not in the children's best interests due chiefly to the ongoing discord between the parents. He believed that continuing the arrangement would adversely affect the children's relationship with their mother in particular and that the father's conduct had been characterised by coercive and controlling behaviour.

The final hearing was adjourned by consent following the ISW's report but one day was used to determine whether the interim arrangements should be varied. Cohen J heard submissions only and directed that the arrangements should change to a week on/week off pattern with increasing amounts of time being spent at the mother's own home on alternate weekends.

The father was granted permission to appeal on three grounds:

1. That the interim hearing had been unfair as it had proceeded with only the ISW's report (which was critical of the father) and without statements from the parents or cross-examination of the expert. This ground was rejected. Interim hearings proceeded ordinarily without oral evidence (FPR 22.7) and the father had not applied to cross-examine the expert under FPR 22.8 nor to file a statement of his own. Either direction would undoubtedly have been granted if sought. In any case it was not unusual for important decisions to be made on submissions alone.

2. That the judge was not impartial, based on his earlier comments about the nesting arrangement and having formed a clear view of the father without hearing from him in evidence. The Court noted that the father had not applied for the judge's recusal or raised the issue at all before the hearing and that Cohen J, notwithstanding his earlier scepticism, had previously endorsed the continuation of the arrangement in the interim. In any event the judgment given was balanced, objective and child-focused.

3. That it was wrong to change the arrangements (at least at this stage) and wrong to impose a week on/week off pattern, given the children's contrary wishes in particular. This was an argument about the judge's welfare analysis and specifically the weight he attached to the various relevant factors. As such the father fell well short of the high hurdle on appeal. While the children's wishes were a factor in favour of maintaining the status quo, the judge had considered them carefully and deemed them to be outweighed by other factors.

While a judge should 'be careful about making an interim order under the Children Act which effectively determines a final issue', the court remained required to take any course which was — as here — shown to be necessary in the interests of a child's welfare. It would remain open for further changes, including a reversion to the previous arrangements, to be made at the final hearing.

The appeal was therefore dismissed.

Case summary by Iain Large, Barrister, St John's Chambers

For full case, please see BAILII