Fifty-fifty – equal parenting time

As far as I know, Re M (A Child) 2014 is the first time the Court of Appeal have dealt with a case involving equal parenting time since the Children and Families Act with its controversial clause came into being.

http://familylawhub.co.uk/default.aspx?i=ce4491

This case has some other remarkable features, but just focussing on what the Court of Appeal say about equal parenting time – that being the order that the trial Judge made.

There is no longer any need, because of the change in the legislation, to impose a “shared” order under section 8. Both parents have equal status. So a division of time 50/50 will remain, in my view, a rare order and only to be contemplated where there is some confidence that it will not work to the disadvantage of the child, albeit that the aim is to give good quality and substantial time with each parent.

If you are one of the campaign groups representing fathers, the Court of Appeal saying that a 50-50 split will be a “rare order” “only to be contemplated where there is confidence it will not work to the disadvantage of the child” is not something you wanted to hear.   So all parents are equal, but some are more equal than others.

Anyway, the meat of this appeal was more on the issue of whether a Court can impose a condition on WHERE a parent will live when making an order that says that the child will live with them (residence order, in old money)

In this case, the boy is 5 ½ .

The circumstances as they were before the judge was that for some time the mother had set up home with W in Newcastle whereas the father lived in London with his two older children, half siblings of W, and it was impracticable to consider the father moving from London, given his commitments there and, in particular, his longstanding employment.

There were a series of findings about the father’s conduct that had led the mother to move out of the family home in London and move to Newcastle, the atmosphere in the family home having become ‘toxic’

So far as allegations that the mother made against the father, the judge made a greater number of findings. They all, in one aspect or another, relate to the degree of control that the father sought to assert over the family as a whole, but in particular over the mother.

One aspect that understandably had prominence was the unfortunate fact that the father was confirmed, as time went on, to be HIV positive. The question arose as to when he knew or must have known that that was the case and whether he told the mother promptly about that and, if not, why not. In short terms, the judge found that there did come a time when the father will have known that it was highly likely that he was HIV positive, but it was not for some year or more after that time that he told the mother about this, despite some active continuing sexual contact between them. The judge describes her finding in this regard as: “Appalling behaviour on behalf of the father. The mother was understandably terrified with this news.” The judge, in short, found the mother’s allegation proved.

The mother’s case was that the boy should live with her in Newcastle and spend some time with his father.

Father was saying that the boy should live with him in London and spend some time with his mother.

The Judge made an order which seemed utterly bizarre on the face of it, particularly given the findings made, which was that the boy would live with father in London and IF mother moved to London, there would then be a 50-50 split of time.

The judge, in the event, made an order that provided for W to be returned from Newcastle to live with his father in London and provided in the interim for arrangements for the mother to have contact. The order further provided that if the mother moved back to the London area herself, she would have substantial contact with her son. Indeed, we have seen a draft order, which counsel have explained to us is more than simply a suggestion of an order as a result of negotiation between counsel, but arose as a result of direct invention from the judge at two or three hearings up to and including 8 July 2014. The basis of the order is that if the mother moves to London, W: “shall live with his father and mother with the principle of equal shared time to include half of all school holidays.” In the meantime, or if the mother does not move to London, the provision was for holidays to be split into equal shares. For each alternate fortnight, so that is once every four weeks, W would travel with the father up to Newcastle to spend most of Saturday and half of Sunday with the mother, and, on another fortnight on each four week cycle, the mother would travel to London to have a similar amount of time with him

The mother appealed, on the basis that (a) given the findings and facts a decision to split the time equally was perverse (b) the evidence was that mother did not want to move back to London and would have considerable difficulty in doing so and (c) this stipulation amounted to attaching a condition to residence – something which is only to be done in exceptional circumstances which this was not.

Let us be fair to the Judge – this ‘third way’ compromise had been suggested by the CAFCASS officer.

“42.The recommendation of Mr Power is that W should be returned to the father and it is the hope from Mr Power that the mother will feel able to relocate back to London and therefore there can be come shared care arrangement. The mother says that it is quite impractical; she does not have a job, she does not have income, she does not know where she could afford to live and it is of note that neither party have initiated court proceedings so there are no financial provision proceedings in being. So at the moment the position is that the mother has no known resources such that she can obtain from her family or from by finding a job. She says that if she has to come back to London she does not know that she can find accommodation. She looked into the possibility of finding accommodation and a refuge is one possibility but the problem about that is that at the time she requested alternative accommodation she was told the only then available refuge was in Manchester. 43. Mr Power was of the view that, biding her time while she remains in Newcastle, that a London refuge would eventually be available to a suitable place and that in his experience people are satisfactorily re‑housed, usually within a period of six months, and that whereas living in a refuge is not something one would necessarily wish to do it was perfectly adequate if W were to live with the mother in the refuge. It is fair to say that, looking at the large amount of documentation produced for this hearing, that the mother in the past has been able to potentially find herself accommodation; at one stage she has through her brother I think paid for four months worth of rent in a flat if the father would co‑operate to allow for some further finance of that in the future but the father refused so she has looked into the possibility and obtained money from her brother. Her brother, also I think, is in medicine or science and lives on the continent and he has helped her financially in the past.”

The Court of Appeal give me a lovely new phrase to use – referring to key passages of the judgment, they say that these are the “engine room” of the judgment. Stealing that!

In paragraph 46, the judge, looking at W’s best interests, said this: “46.It is vital for him that he should have the continued love and care from his mother in the future as he has had in the past. 47. So looking at those two options, those are really the only two options. Either W stays in Newcastle with the mother under the regime she puts forward or some other workable contact arrangement, what these days are child arrangement and sharing of care, or she comes down to London and she with the father, together, care for W. Mr Power, when asked about what he had in mind with a shared care arrangement, said that he would hope that the mother would have at least half the care of W and possibly more than half the care of W depending upon her commitments, but he could not be more definite about the arrangements because at the moment the plans are inchoate.

48. The father’s proposal if W was returned to London would be that W would see his mother very little indeed. Having heard the evidence he said that he would support what Mr Power recommended. Therefore if the mother can remove herself back to London then she should be able to have a substantial part of the care of W depending upon where in London she is able to live. Of course the court cannot force the mother to move back to London; it will have to be a decision for to make but looking at all the options. The court must make the decision which is the least destructive of family life, must make no order unless an order is necessary and must make a proportionate order. It is a difficult balancing exercise but the balancing exercise must be carried out in what is in this little boy’s best interest. I have no doubt it would be in the mother’s best interest that she should remain in Newcastle. She is happy there and she has a very nice home and there are suitable arrangements for W but this case sadly cannot be decided upon what is in the mother’s best interests; it has to be decided on what is in W’s best interest. I am well aware that she in a difficult predicament because of at the moment she has no income, she has no job and her immigration status is questionable but she is, I find, a resourceful woman and she has been able to achieve that which she wanted, within reason, in her circumstances whilst she was living with the father. Although I have found father was controlling, nevertheless she did go out, she went to courses, she had a job, she left when she chose to to take W to see family or friends. She says she has no friends now but she obtained friends over Facebook and in the past she went to stay with one friend, S, and at one stage she was able to be friendly with her brother’s fiancée but that too has come to an end. So she is a woman who is capable of making friends, who is capable of arranging life as best she may even when in that toxic atmosphere. Therefore I am satisfied that if she decides she wants to move back to London then she will be able to find one way or another that will enable her to do so. As I say, at the moment, there are no financial proceedings so I know not how they may work out if such applications were made; that is not for this court and it is certainly not for this court today.

49. Therefore, carrying out that balancing exercise and looking at what is in the best interests of W, I have come to the conclusion that it is in the best interest of W that he now should be returned to the father’s home and that he should live there under a shared care arrangement; a child arrangement where, in principle, the mother should have a substantial part of the care of W but that of course cannot be put in place until and unless the mother is willing and able to move back to London. If she is not, and in the meantime whilst she remains in Newcastle, sensible arrangements will need to be made so that she can see W and I will leave the parties to see if they can, by agreement, work out a sensible regime. There needs to be a date when W is moved back here; clearly he needs to be back in time for the start of school in September and consideration needs to be given to what happens in the meantime and no doubt arrangements will have to be made but in my judgment, for this little boy, the familiarity of school and the church that he has been going to is, I agree with Mr Power, what is the most stable part of W’s life in the light of the fact that his parents are separated. Therefore, in my judgment, W should return to live with the father. The order should reflect the fact that, in principle, the mother should have part of the care of W when and if she is able to come and live in the proximity to the father and to W’s school and until such time as that happens, what used to be described as contact arrangements will have to be worked out.”

Those paragraphs are the engine room of the judge’s judgment and have been the focus of the appeal before us

So, the Court of Appeal had to consider whether what the Judge had done did amount to attaching a condition on residence and whether that was justified.

The law on that really emerges from Re E (Residence : Imposition of Conditions) 1997 2 FLR 638 – “where the parent is entirely suitable and the court intends to make a residence order in favour of that parent, a condition of residence is in my view an unwarranted imposition upon the right of the parent to chose where he/she will live within the United Kingdom or with whom. There may be exceptional cases, for instance, where the court, in the private law context, has concerns about the ability of the parent to be granted a residence order to be a satisfactory carer but there is no better solution than to place the child with that parent. The court might consider it necessary to keep some control over the parent by way of conditions which include a condition of residence”

The Court do have the legal power to make conditions under s11(7), but unless there are exceptional circumstances, they ought to have decided which of the two competing plans (with mum in Newcastle or with dad in London) was the right plan, rather than imposing an order which effectively compelled mother to move to London against her wishes.

In my view, the judge should have made a clear choice, hard though it would have been, between W remaining living in the care of the mother in Newcastle or living in the care of the father in London and she should not have endorsed the halfway house arrangement that she did, which, for the reasons I have given, was, first of all, in my view, impermissible as a back door condition, but secondly, and perhaps more importantly, was simply not justified on the evidence and hard to understand as a concept that would be compatible with the child’s welfare. For those reasons, I would allow the appeal and set aside the judge’s order.