K (A Child)

This is an application made in person by Mr K for permission to appeal against an order made by HHJ Bromilow sitting in the Taunton County Court in November 2007. HHJ Bromilow was in fact hearing an appeal from District Judge Smith. On 5 June 2007, District Judge Smith had refused to make a joint or shared residence order in relation to the parties’ child, G, born on 20 November 2001, and had also refused to vary the current contact arrangements between Mr K and G. Mr K appealed that decision to the judge. The judge did not hear oral evidence, and although he reserved judgment for a period of a month he dealt with the matter on a strictly G v G basis. He decided that the district judge had appropriately exercised a discretion and that he therefore could not interfere.

The sad and unusual feature of the case is that G suffers from a form of Down Syndrome which, as I understand, it is not as severe, certainly in its physical manifestations, as conventional Down Syndrome, but which may well cause difficulties for G in his later life and as he develops. It is very clear that although Mr K was not married to G’s mother, he nonetheless has taken a full part in G’s life and has, on the evidence, gone out of his way to educate himself about Down Syndrome and to assist his child.

The district judge appears to have been under the impression that joint residence would only be granted in circumstances where a child’s time was spent equally between his parents. At the moment, as I understand it, the division of time in G’s case is something in the order of 60:40 or thereabouts in the mother’s favour. If the district judge was under that impression, it was, in my view, an incorrect impression; and because the judge simply accepted the district judge’s conclusions, it seems to me that there is here a point of some importance which needs to be considered by this court, namely whether or not in the circumstances of this case there should be a shared residence order where one has, in particular, a concerned and indeed devoted father who has gone out of his way to involve himself in the life of his child.

I have today made it clear to Mr K that if he does not succeed in this court he may well have to pay the costs incurred by G’s mother. I have also made it very clear to him that, in my view at least - and of course I cannot speak for the full court - there are two distinct issue here, namely shared residence and contact. To put the matter another way, since I disagree with the district judge’s approach - or what I perceive to be the district judge’s approach - it is also my view that Mr K may well succeed or could succeed on the shared residence order whilst at the same time not succeeding in varying the current arrangements for the amount of time G spends with his father. .

It seems to me, however, that this case is essentially about shared residence, and Mr K’s position in relation to the amount of time G spends with him – currently designated “contact” is less strong at the present time, given the very broad discretion available to the judge and to the district judge in this regard. But be that as it may, these matters are up for argument. They are, in my judgment, important, and a point of principle is involved.

I have also made it very clear to Mr K, however, that he should not perceive shared residence as giving him some status which is superior to that of the child’s mother. There is a hint in the papers that Mr K has in the past perhaps not fully appreciated the role which G’s mother plays in his life. However, Mr K has assured me today that he is aware of this particular issue and would not seek to use shared residence as giving him any form of enhanced status over the very important role which of course is played in this child’s life by his mother.

In these circumstances, as I say, it seems to me highly arguable that this is a case in which there should have been a shared residence order, or it may certainly be arguable, and in those circumstances it is appropriate for Mr K to have an oral hearing of his application. I have adjourned the matter and listed it for oral hearing with appeal to follow because that gets the case on more quickly than a simple grant of permission, and I very much hope that the fact that this matter has come to litigation now for the third time will not in any way sour the relationship between this child’s parents, who plainly need to co-operate in his future.

But be that as it may, it seems to me, as I say, that the case raises a point of some importance which this court ought to consider, and for those reasons I have adjourned it PTA plus A. We will get it on as soon as we can. I estimate it will take some two hours to argue, and I would prefer there to be a three-judge court, at least one of whose members should have family experience; but if push comes to shove it seems to me that a two-judge court would be sufficient provided that at least one of the members of the two-judge court has had proper family experience.