R (Children)

LORD JUSTICE THORPE: This appeal concerns two children Louie, who is 10, and Patrick, who is 8. Their parents married in 1995 and separated in September 2003, the mother left the family home in Sheffield with the children to move a relatively short distance to Dinnington, which is about 30 minutes from Sheffield by car. Proceedings followed in the Sheffield County Court which resulted in an agreement in December 2003 for shared care. The practical arrangement was that the children spent five days with one parent and then moved to spend five days with the other parent. They continued at their Sheffield school.

The proceedings in Sheffield developed into cross-applications for residence orders. Miss Edwards, who has argued the case before us this morning most skilfully, points to a sentence in the father's C1 when he, within the framework of explaining his application for residence order, said:

The CAFCASS officer prepared a written report and, under the heading "The Children Concerned", he said:

Later in his evidence when questioned by the father's solicitor he was asked, after an observation that his report was silent on the effects of the status of shared care, this question:

Mr Walker-Kane, who has advocated the mother's case today equally skilfully, stresses that the father's litigation position was essentially a sole residence order. He only adopted the option of a shared residence order in the alternative at trial as a fall-back if his first application failed. However, as the case stood before the judge, shared care was the arrangement that had obtained since the previous December. It was the arrangement that the children strongly favoured. It was the father's alternative case. It seems to me, therefore, that it was incumbent upon the judge to deal with that as the first option for the court and to explain either its adoption or its rejection. In so far as the judge did that he, in paragraph 5, noted the father's alternative case and noted that shared care was what the children wanted. He then directed himself in these terms:

There are aspects of the judge's conduct of the balancing exercise that led him to that conclusion that are open to criticism. The children's wishes he dealt with in a way that seems to me to be excessively perfunctory. He merely said in paragraph 13:

To return to the issue of generous contact, it seems that the mother's solicitors drafted an order which recorded by consent that the father was to have the children on alternate weekends and half the school holidays taken in block. That order was accordingly drawn, but was apparently subsequently rejected by the father's solicitors on instructions, and they required a further hearing which apparently took place on 24 May. Seemingly further evidence was given and a further judgment (which is not before us), but the resulting contact order imposed by the judge actually gave the father less than the consent draft of 19 May had provided. More important, perhaps, is that on 19 May the father sought his solicitor's advice on the possibility of appeal. We have only been told by Miss Edwards that the advice was negative and that he was provided with some form or other. We know that on 8 June he presented an appellant's notice in the form appropriate for the Court of Appeal at the Sheffield County Court who quite wrongly accepted it as a legitimate exercise, stamped it and proceeded to process it. The father, apparently guided by the county court, served the notice on the mother's solicitors that day. He was perturbed at the absence of progress and visited the court in September, but it was not until 10 October that the Sheffield court woke up to its errors and directed the father to the proper point of redress, namely this court in London. A notice of application was duly received and sealed by the court on 11 November.

The case was listed for oral hearing on 27 January when I directed an oral hearing on notice with appeal to follow, noting what seems to be a clear misdirection on the issue of shared residence order in paragraphs 6 and 7 of the judgment which I have already cited.

When the case was called this morning Mr Walker-Kane very responsibly said that he had had discussions with Miss Edwards which satisfied him that it would be quite wrong for him to take any point on the delay between the judgment of judge Swanson on 19 May and the filing of the notice in this court on 11 November. It is perhaps unfortunate that the case has not received greater priority in this court since its first arrival. Certainly on 27 January I was hopeful that it would be listed before Easter, but that has apparently not proved possible and the reality is that 11 months have gone by since the order was not only made but implemented in Sheffield. Since that date the children have lived with their mother in Dinnington, having contact with their father in accordance with the order of 24 May. The mother has consolidated her relationship with her present partner and is due to bear his child in the late summer. We have no idea at all as to how the children have settled in a new home, in a new school, and the extent to which the circumstances which favoured the father's alternative case 11 months ago now obtain.

Miss Edwards has put her case very realistically. She has rightly stressed that her client is the recipient of injustice, both in what are apparent misdirections in the judgment below and in the manner in which his endeavour to appeal was mishandled by the Sheffield County Court. She says that the necessary consequence is the setting aside of the order below and a direction for retrial. She has sensibly conceded that any retrial should be limited to the determination of the alternative application for shared residence and that after the filing of a CAFCASS officer's report by an officer other than Mr Wight the court should conduct a directions hearing to determine whether or not it would be necessary to order a full hearing. Mr Walker-Kane has stressed that, although there may be imperfections in the judgment, Judge Swanson had taken the case at short notice when the Recorder's case had overrun. He stresses that essentially the judge got this case right. Even had he directed himself impeccably on the issue of shared residence, he would have rejected it as an option for essentially practical reasons. He would then have proceeded to consider the cross-applications and he would have inevitably arrived at the conclusion which he did, given the CAFCASS officer's assessment and all the other evidence before him. Accordingly he says that, although there are legitimate criticisms of the judgment below, this is not a case in which the court should exercise its discretion to order a retrial.

For the sake of clarity, I reiterate my opinion that the judge's approach to the issue of a shared residence order is unsupportable. The judge seemingly refers to the significant shift in case law over the course of the last ten years, but does not seem to have understood the pace or direction of that movement. This court has recently confirmed the wisdom of the approach taken by Wall J in A v A(Shared Residence) [2004] 1 FLR 1195. As is plain from paragraphs 121 to 126 of that judgment, a harmonious relationship between the parents is not a prerequisite of a shared care order. Indeed the presence of that sort of harmonious relationship is a contraindication of a shared residence order since such parents would fall within the no order principle emphasised by section 1(5) of the Act.

For the judge simply to dismiss what was an important option on the basis that the parents had the potential for continuing emotional conflict is not good enough; and the fact that he adopted that approach at a very early stage suggests a closed mind to what was a very serious option, given that it was on foot; given that it had operated to the benefit of the children for the preceding six month and given the fact that it was the children's strong wish to see it continue.

That leads me to my second criticism which I have already voiced and need hardly repeat. The judge, in my view, did not give sufficient consideration and weight to the stated wishes of these children, albeit they were then only 9 and 7. Children have a right of participation in private law proceedings and in this instance that participation had been afforded through the investigations of Mr Wight. What emerged from these investigations demanded very careful judicial consideration.

What, then, is to be done with an application which cannot be disposed of on the basis of delay but now takes the considerable obstacle of an arrangement put in place by judicial order, on foot for nearly 12 months and, superficially at least, working well? It is a difficult balance. I recognise the father's right to fair trial and his right to a judgment that is correctly directed on issues of law and principle. Against that it was clearly open to the judge to reject the shared care option on the basis of practicalities which had certainly been recognised by Mr Wight in his written report, even if he did not support them particularly strongly in his oral evidence. In fairness to the judge I recognise that to a large extent he may have been diverted in his approach by the answers that Mr Wight had given in response to questions from the father's solicitor - answers that I have already cited.

The judge, had he arrived at a legitimate foundation for rejecting the shared residence order, clearly then had to choose between the parents. The basis of his choice is explained, supported by evidence, difficult to challenge on any basis of discretion, and liable to be replicated on any retrial. As I have already said, I regard this as a difficult balance. But in the end I have come, not without some hesitation, to the conclusion that, looking to the welfare of the children, it would risk more to their current security to initiate further litigation. That would, in all the circumstances, be disproportionate to the father's entitlement to a well directed judgment below. So my ultimate conclusion is that time should be extended, permission granted, but the subsequent appeal dismissed on the ground that, although misdirection is demonstrated, in the exercise of my discretion I would not think it right to order a retrial.

LORD JUSTICE SCOTT BAKER: I agree.

LORD JUSTICE LLOYD: I also agree.