B1/2001/1836

Neutral Citation Number: [2001] EWCA Civ 1795
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WILLESDEN COUNTY COURT
(MR RECORDER MORRIS)
 
                                  Royal Courts of Justice
                                  Strand
                                  London WC2
 
                             Monday, 12th November 2001
 
B e f o r e :

LADY JUSTICE HALE

--and--

LORD JUSTICE RIX

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A (Children)

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(Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7421 4040
Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

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MR M EMANUEL (instructed by Gillian Radford & Co, London W10 4RG) appeared on behalf of the Appellant
MISS E DESCHAMPSNEUFS (instructed by Ranga & Co Solicitors, London NW10 2PN) appeared on behalf of the Respondent

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J U D G M E N T
Monday, 12th November 2001
1.	LADY JUSTICE HALE: This is a father's application for permission to appeal against the order of Mr Recorder Morris made in the Willesden County Court on 31st July 2001 in Children Act proceedings about three children: M, who was born on 29th April 1988 and is aged 13; E, who was born on 24th August 1990 and is aged 11; and R, who was born on 29th October 1996 and is aged 5.
2.	The recorder made a shared residence order in relation to all three children but gave “care and control” of M to the father, and of the two girls, E and R, to the mother. He ordered that there be contact in alternate weeks with each parent over the summer holidays, and then alternate weekends with each parent, and extended periods of contact during the school holidays to be agreed between the parties. This is a most unusual form of order following the Children Act 1989, and for that reason I directed that the application for permission to appeal be listed for hearing on notice so that the form of the order could be considered; the father also wishes to challenge the decision on its merits.
3.	The parents are of Kurdish background but born in Kuwait. They married in Kuwait in July 1987. The two older children were born there. They came here as refugees in 1992; they were granted asylum, and naturalised. The father's family also came here in 1995. Their youngest child was born here. The marriage was in serious difficulties last year. The mother accused the father of violence towards her and she wished for a divorce. The father accused the mother of infidelity. Each parent denies those charges.
4.	The ex parte interventions of the court may not have assisted in resolving the family's problems. On 14th September 2000 the mother obtained a non--molestation and occupation order ex parte excluding the father from the home. On 24th October 2000 on the other hand an order was made ex parte that the children were not to be removed from the father's care and the occupation order was discharged. On 31st October 2000 there was an order for the father to return to the home. Thereafter they were all together in the former matrimonial home but the parents were on very bad terms with one another. Each made an application for residence orders in relation to all three children; a court welfare officer's report was ordered.
5.	The first report is dated 9th January 2001 and was made while the parties were still living under the same roof. It indicates that both of the older children were significantly alienated from their mother. They said that they wanted to live with their father and not to see their mother. It appears that they were blaming her for the family's difficulties and experiencing this as a rejection of them. M was taking his father's side and E was influenced by him. The court welfare officer clearly did not think that this was good for E. R, the little girl, needed her mother. Thus the tentative recommendation was that the children be separated: M to live with his father, and the girls to live with their mother.
6.	At a hearing the following day, 10th January, before his Honour Judge Sich, the mother undertook to leave the home and went to stay with her nephew in a small flat. It was agreed that there would be contact with the children four days a week, Wednesday, Friday, Saturday and Sunday. The matter was listed for 6th March. On that date it was adjourned generally and then relisted for 5th June. On that date it came before Mr Recorder Morris for trial. He heard evidence from the child and family reporter (as she had now become). She wished to make further inquires into how matters had moved on since January. Hence the matter was adjourned for her to make a second report and relisted for 31st July.
7.	The second report is dated 22nd July 2001. From this it is clear that M was still very angry with his mother. He did not want to see her. Indeed he had only seen her once since January. He felt angry at his sisters' seeing her. E on the other hand was far more positive about her mother this time. She missed each parent when with the other one. She felt more comfortable with her mother because they were both females; she wanted to live with her mother. She said that her father had told her that if she lived with her mother she would never see him again. She was confident that her mother would promote contact between her and her father. R was happy with both parents. The reporter concluded that this was a complex situation but on balance there were no grounds for changing the children's residence, but:
“The court may share my view that it is important that each parent has the opportunity to have responsibility for their children. If the parents co--operated, a joint residence order could be considered.” 
8.	She continued that in any event the younger children should see as much as possible of each parent.
9.	The recorder's judgment is very brief. One understands that in these cases judges are anxious not to say more than is absolutely necessary because this may inflame the feelings between the parents and make matters for the children even worse than they already are. One is also conscious that there were before the court two full reports from a child and family reporter which go through in detail the background to the case, the views of parties, the wishes and feelings of the children and the check--list of relevant factors concerning the children's welfare set out in section 1(3) of the 1989 Act. The recorder considered in this case that there were clear factors warranting the splitting of the children. M was close to his father but it was in the girls' best interests to be with their mother. The main problem was her accommodation. Later on he referred specifically to the children's own wishes and feelings. He was therefore giving effect to the wishes and feelings of each of the children while seeking to produce an order which would encourage them to see as much as possible of one another and of each parent.
10.	The father's challenges to that conclusion have been very clearly presented to us on his behalf by Mr Emanuel. First, it is argued that the judge changed the girls' residence and departed from the child and family reporter's recommendation without giving clear reasons for doing so. However, this is not a true status quo case. All the arrangements that had been made for the children were interim arrangements. The girls had been seeing their mother frequently since January, and it was the reporter's view that they should see a good deal of her. It also appears that the recorder made inquiries of the housing authority personally. If there was a residence order in the mother's favour she would be offered housing. That has indeed happened. The mother and girls were rehoused, albeit some considerable distance away in Dagenham, in September. The recorder clearly had in his mind that the staying contact which he thought essential would be difficult unless the mother had access to appropriate housing. It is quite clear that he canvassed with the child and family reporter the prospect of a residence order in mother's favour.
11.	Mr Emanuel's second argument is that the recorder separated the children without identifying a good reason or consulting the child and family reporter. It is of course a commonplace that children who are close to one another should not be separated without a good reason. Equally, however, there are cases in which such good reasons exist. This case is unusual in that the child and family reporter had earlier concluded, while all the family were still living under the same roof and despite E's expressed wishes to the contrary, that the children should be separated and that the girls should live with their mother.
12.	The views which she expressed at the court hearing are by no means easy to interpret. There is ample testimony to that in the fact that Mr Emanuel on behalf of the father put one interpretation upon her oral evidence and Miss Deschampsneufs on behalf of the mother puts another interpretation upon that oral evidence. The one thing that is absolutely plain is that she regarded this as a difficult case. She had to acknowledge that M was unwilling to see let alone live with his mother for the time being because of his anger against her; but equally the matter of the girls living with their mother was canvassed in front of her. In those circumstances it is clear that thought was being given to such a solution. The background to this is the very strong views that the father and M have expressed about the mother, and the problems to which the court welfare officer drew attention at the earlier stage that this was causing for the girls, particularly for E in her relationship with her mother.
13.	Miss Deschampsneufs also draws attention to hostility shown by the father towards the mother during his evidence. That is precisely the difficulty Mr Emanuel faces before this court. We were not there. We could read a transcript but we cannot listen to the tone of voice or watch the expressions on people's faces as they give their evidence. That is one of the main reasons why this court is so reluctant to interfere with the decisions taken by the judge who has had that opportunity. These are all very difficult matters of people's innermost feelings. The reporter is there to report as best she can on the children's wishes and feelings because the judge does not usually see the children and is not usually in a position to judge those for himself. The recorder had the benefit of seeing both parents give evidence. This would have given him the opportunity of judging their feelings and their qualities. No appeal court can be a substitute for that. The more difficult the case is the more finely balanced the arguments, the less it is open to an appeal court to say that he was plainly wrong.
14.	For my part, despite the brevity of his reasoning, given the total background to this difficult case and the way in which the reporter's views had wavered over her involvement in the case, I cannot possibly reach the conclusion that the judge's exercise of his discretion on the substance of the matter was plainly wrong.
15.	The third aspect to this case is the question of a shared residence order. The recent case of D v D Shared Residence Order [2001] 1 FLR 495 has made it plain that such orders are not necessarily exceptional; they should be made if they are indeed in the best interests of the children. But it is important to realise what a residence order is. Section 8(1) of the Children Act 1989 defines a residence order as:
“An order settling the arrangements to be made as to the person with whom a child is to live.” 
16.	A person of course may mean more than one person. Section 11(4) makes it plain that a residence order in favour of two or more persons who do not themselves all live together may specify the periods during which the child is to live in the different households concerned.
17.	I completely appreciate why the recorder wished to make a shared residence order in this case. He wanted to recognise the equal status of each parent in relation to all three of these children. He may, although he does not say so, have been afraid that the father would not recognise this if he did not make a shared residence order in relation to all three children. But the law is that the parents already have shared parental responsibility for their children. They have equal and independent power to exercise that parental responsibility. A residence order is about where a child is to live. It is very difficult to make such an order about a child who is not only not living with one of the parents but is, for the foreseeable future, unlikely even to visit with that parent. Notwithstanding, therefore, that that parent does not wish there to be any distinction between the children, because she does not wish M to feel rejected by her, the court's order has to be designed to reflect the real position on the ground. That being the case, in my view the shared residence order in relation to M was inappropriate. For that order there should be substituted an order that M is to live with his father and to have contact with his mother in the same terms as the order laid down by the learned recorder.
18.	That brings me to the question of the girls. An order in the terms made by the recorder clearly does not conform to the Children Act 1989. That Act does not deal with the concept of care and control. The recorder's intention was that these children should basically live with their mother but see as much as possible of their father and their brother as well. At the time when he made it there was some uncertainty, and there has remained some uncertainty, about E's wishes in relation to her father. She did not visit him in accordance with the contact order over the summer although happily she has now gone to visit him. She feels confident enough to do so and of course everyone hopes that that situation will continue for the future. But there is not yet such a settled pattern in relation to these children that it is clear that a shared residence order is appropriate. In the circumstances, therefore, I would propose also to set aside the shared residence order in relation to the girls and substitute an order that the girls are to live with their mother and have contact with their father and brother in accordance with the order made by Mr Recorder Morris on 31st July.
19.	Therefore there should be permission to appeal and the appeal allowed to the limited extent indicated in this judgment.
20.	LORD JUSTICE RIX: I agree.
(Permission to appeal allowed; appeal allowed in part; costs to be subject to detailed public funding assessment).