Made to order

While there has been a plethora of cases concerning residence orders (ROs), recently the courts have had to contend with applications in which the factual context seems, on the face of it, more typical of public law Children Act 1989 (CA ) cases.

In Re R (A Child) [2009] EWCA Civ 358, the Court of Appeal considered a long-standing dispute between parents. The child (C) was living with the mother (M) with contact with the father (F). However, the parents were described as 'implacably hostile to each other'.

In the lower court, Professor Zeitlin (child and adolescent psychiatrist), instructed by C's guardian, reported on the damaging impact on C of the ongoing conflict, even suggesting that the court consider independent foster care to remove him from the conflict. However, the local authority was not prepared to issue care proceedings.

The guardian's report proposed that C live with paternal grandparents, although the grandparents had not themselves applied for an RO. The parents made cross-applications for ROs. Professor Zeitlin believed that a placement with the paternal grandparents would only work if both parents agreed; otherwise it would not extract C from the conflict between them. M was strongly opposed to C's placement with the paternal grandparents. Nonetheless, the judge made an RO in the grandparents' favour.

The appeal judges considered there was a fundamental flaw in the judge's reasoning and should not have made the RO. The court found that the judge had accepted that an independent placement should be considered, 'while at the same time recognising the fact that the paternal grandparents are patently not independent'. It was hard to see how placement in an environment recognised not to be independent could achieve the stated aim of removing C from the conflict. Moreover, the court found the judge had given insufficient weight to 'the fundamental proposition that children have a right to be brought up by their natural parents unless their welfare positively demands the replacement of that right'. In this case, the effect of the RO was to remove C from M's care, with whom he had always lived. The judge had disregarded the fact he was depriving C of family life with his half-sibling, who also lived with M. In focusing on the need to remove C from the conflict, the judge had lost sight of these fundamental issues.

Interestingly, and just over two months later, the Court of Appeal heard Re B (A Child) [2009] EWCA Civ 545. This appeal also considered the role of grandparents vis-a-vis that of the natural parent. On appeal, the court held that the judge had been entitled to make an RO to F rather than the grandmother with whom C had lived since birth. Grandparents do not enjoy the same status as parents under the CA 1989 and, although C's welfare was the court's paramount consideration, the rearing of a child by his biological parent was usually expected to be in the child's best interests. While saying that, the court believed it necessary to clarify that Wall J, who heard both this case and Re R (A Child), may have gone too far when he criticised the judge in the latter case when stating that children had a right to be brought up by their natural parents.

The courts have shown support for grandparents, particularly where they are the preferred placement option for the child rather than state care. In Re C (A Child) [2009] EWCA Civ 72, it was held that a judge had been entitled to make an RO in respect of a five-year-old boy in favour of his paternal grandmother who was 70. Although it was an unusual course, it was appropriate given the law's tendency in favour of a placement within the wider family and the grandmother's track record of commitment to the child.

'The new vogue'

In the past, shared residence orders (SROs) were rare as it was considered they would only work in situations of close cooperation. Judicial opinion has now changed and they are often being granted in situations of high conflict.

D v D (Shared Residence Order) [2001] 1 FLR 495 significantly widened the opportunities for SROs. In this case, the court held that it was unnecessary to show exceptional circumstances before such an order would be made. In the current climate of increased relationship breakdown, SROs are becoming progressively more common; some commentators describe them as 'the new vogue'.

SROs are a mechanism by which equal care arrangements can be given efficacy by the court, but an SRO does not necessarily provide for the child(ren) to spend equal time with each parent. In Re A (A Child: Joint Residence/Parental Responsibility) [2008] EWCA Civ 867, the Court of Appeal approved the practice of making an SRO to confer parental responsibility upon a man who was not the natural father, even though the child only stayed with him on alternate weekends. In Re W (A Child) (Shared Residence Order) [2009] EWCA Civ 370, an SRO was appropriate despite the child being in the mother's care for 75 per cent of the time. Indeed, more often than not a 50/50 equal share arrangement is not a feature. Nonetheless, the label of shared residence is considered important to one or both parents as recognition of the parity of their positions and responsibilities.

A child's best interests

In Re W, the appellant, M, unsuccessfully appealed against the SRO obtained by the F in respect of their daughter (W). M and F were separated. W lived primarily with M but had substantial contact with F. M stopped W's contact with F, prompting him to apply for an SRO. Cafcass reported that W had a good relationship with M but wanted contact with F. M resisted the application but the court granted the order despite the parties' agreement that W would spend 75 per cent of her time with M, and 25 per cent with F. M contended that the SRO did not reflect the actual situation and that unless the time to be spent by a child in the two households was close to being equal, unusual circumstances were required before an SRO should be made.

It was held that it had previously been true that absence unusual circumstances an SRO would not be made. However, although an RO would only be made where it was in the child's best interests, there was no need to show 'unusual' or 'exceptional' circumstances before an SRO could be made. An SRO might be appropriate where it provided legal confirmation of the factual reality of a child's life, or where the court wants to send a strong message to parents at war to show they are equal in the eyes of the law. The overriding concern was the best interests of the child.

The 'status quo' argument

Practitioners seeking to rely on the 'status quo' argument to combat the making of an SRO should be aware of Re F (Shared Residence) [2009] EWCA Civ 313. This concerned an appeal by M against an SRO and the time the children would spend with each parent under that order. The children had been in M's sole care since separation. M appealed on the basis that the judge failed to give proper weight to the status quo, that the children should remain with her and not be removed without good reason, having found that the children would thrive in either household and given that the children were doing well in M's care. The Court of Appeal dismissed her appeal and held that courts should direct their attention to the welfare checklist rather than rely on the presumption of fact that might arise from an argument regarding the status quo. This case reminds practitioners to focus on the checklist, and sets out the express factors to be considered when determining what is in a child's best interests: the status quo argument simply falls into section 1(3)(b) 'physical, emotional and educational needs' and/or section 1(3)(c) 'the likely effect... of any change in the child's circumstances'.

Internal relocation

An interesting issue which the court has recently been tasked with is applications for permission to relocate internally where an SRO is in place. Re T (A Child) (Shared Residence Order) [2009] EWCA Civ 20 is particularly helpful because it conducts a full review of SROs. It is the first known case of this kind to reach the Court of Appeal. M was British and held an Israeli passport. F was Serbian but settled in the UK. After being made redundant, M applied to relocate with L and her fiancée to Israel. Her application was refused and an SRO was made. M then moved to north London without informing F. Subsequently, M made a further application (the subject of this appeal) to relocate with L, this time to Somerset. Her case was that the only employment she could find was in Bristol, necessitating the move. F objected, stating that the move would disrupt his relationship with L. There were adverse findings against M concerning her application to move to Israel which went to her credibility and that her motivation was at least in part to 'weaken the father's emotional and physical bond with the child'.

At first instance, the judge found that part of her motivation was driven by an objective of undermining the SRO. He refused the application to relocate to Somerset, and M appealed. The Court of Appeal disagreed with the judge's approach. The question was whether the existence of an SRO should require the court to take a different approach to an application by one party to relocate with the child. Wall LJ emphasised the importance of this case, and stated that several questions arise. In particular: what effect, if any, does an SRO have and what weight should a judge give to the existence of an SRO?

After considering several SRO cases, Wall LJ came to the conclusion that it was wrong in principle to apply different criteria to the question of internal relocation simply because there was an SRO. The correct approach was to look at the underlying factual matrix in welfare terms, bearing in mind the tension which may exist between the freedom of a parent to relocate and the welfare of the child which may not be best served by relocation. The fact that the SRO was in place was an important factor in the welfare equation, but not of itself an automatic bar or a 'trump card' against relocation. As for M in this case, her appeal failed; the Court of Appeal chose not to interfere with the judge's dismissal of M's application.