Judgement for Shared care after Dad appeals Lives with Mother

[Ash]

This is a recent Judgement from an appeal where the Judge agreed that a lives with both parents order would benefit the children. The Father appealed the final order that said the children should live with the Mother. Point 81 has some useful points and terminology and this Judgement is useful caselaw.

"The welfare advantages for each child of a shared lives with order in the present case would be that:

i) It would make it more difficult for either parent to regard themselves as being in control of contact or to seek to control contact – a problem that the Judge had specifically identified.

ii) In particular, it would mitigate the effects of the Respondent's attempts to control contact which the Judge had noted from the ISW's evidence and had himself observed were not positive. Rather than ordering the Respondent to make sure the children spent time with the Appellant, a shared lives with order would set out arrangements for the division of time in the same terms for each parent, if not the same periods of time. It would thereby put the parents on an equal footing when seeking to make arrangements for the children.

iii) It would also put the parents on an equal footing with regard to holidays abroad including during school holidays when the children are going to spend equal time with each parent.

iv) A shared lives with order would signal to each parent that each was of value in the lives of the children, something the Judge had found each parent failed to appreciate.

v) It would also signal to the children that each parent has, in their capacity as parent, the same inherent importance in the children's lives.


vi) It would promote a sense of stability within the family: whatever the disagreements between the parents, the court had ordered that the children shall live with both of them."

AZ v BX (Child Arrangements Order: Appeal) [2024] EWHC 1528 (Fam) (21 June 2024)

I've also added this to the Legal Resources section as Caselaw

 

[Pj66]

To clarify, the father appealed the "spends time" with and was granted a "shared lives" order with only 2 nights a fortnight 2/14, mid week contact was 3 evenings and not overnight.

I see it rarely granted on here a shared "lives with" order on the bassis of 2/14 nights. it was clear that the childrens "lived experiences" swayed the decision in this regard. The children were of age 7, 10, & 13.

I highly suspect the decision that was made was due to a long term marriage and the childrens ages. And i doubt that this decision would have been made for a much younger child based on 2 nights a fortnight. It is also an example of where conflict between parents has not swayed the decision, which goes against the advices on here and the Judge said that there is "conflicting case law about whether or not a shared care order is appropriate where parents cannot work together

The interesting part was regarding the reason to grant the appeal was to "avoid future court intervention", I believe this should be of utmost importance when considering making any order but it is not often the case.

 

[Ash]

Yes it is one of many arguments and case law that says parents don't have to be able to get on well for a shared care order to work.

The "conflict between parents" aspect referred to on here is when Cafcass themselves say the conflict is bad for the children and recommend minimal time or indirect contact only, which is often followed by the courts. There is a difference between the label "conflict between parents" and parents just disagreeing and not getting on - in terms of the court.

"Conflict between parents" refers to a much greater degree of hostility. However if it's proved that it's only the Mother that is hostile, that is another argument for shared care - and it takes something away from her.

 

[Pj66]

Yes it is one of many arguments and case law that says parents don't have to be able to get on well for a shared care order to work.

The "conflict between parents" aspect referred to on here is when Cafcass themselves say the conflict is bad for the children and recommend minimal time or indirect contact only, which is often followed by the courts. There is a difference between the label "conflict between parents" and parents just disagreeing and not getting on - in terms of the court.

"Conflict between parents" refers to a much greater degree of hostility. However if it's proved that it's only the Mother that is hostile, that is another argument for shared care - and it takes something away from her.

Yes i see that now, and it appears that Cafcass have too much power to label "disagreements" which are expected in seperated parents, to "conflict", and the courts apply that to the rest of the case.

 

[Ash]

I think the Cafcass label of "Conflict between parents" is usually applied when both parents are making serious allegations against each other. They don't look at whether or not the allegations are true initially - they look at the fact that both parents are hurling accusations at each other rather than being child focused. Whereas if only the Mother is hurling allegations and the Father is child focused, it could be seen that the Mother is just hostile. So both parents don't get tarred with the same brush. It is much more likely that Cafcass recommend a Fact Find, if both parents make allegations. If only the Mother makes them, these can sometimes be dismissed without a fact find.

The pitfall for a lot of Dads when the Mother makes them is when it's reported to the Police - a lot of Dads don't know about giving no comment interviews. By giving an interview it can be passed to the CPS and cause very long delays and long bail times. So it's in an accusing ex's armoury to ensure things get delayed for a long time. But if it's then NFA then those allegations are dismissed/dealt with.

Although in some cases on here we've seen that Cafcass have still believed the Mother's allegations in a Section 7 report.

In the case in the Judgement I suspect there were no serious allegations involved and it was the general issue of breaches, not getting holidays agreed - general disruption. Still hostility but not serious allegations.

 

[Ash]

To clarify, the father appealed the "spends time" with and was granted a "shared lives" order with only 2 nights a fortnight 2/14, mid week contact was 3 evenings and not overnight.

I see it rarely granted on here a shared "lives with" order on the bassis of 2/14 nights. it was clear that the childrens "lived experiences" swayed the decision in this regard. The children were of age 7, 10, & 13.

I highly suspect the decision that was made was due to a long term marriage and the childrens ages. And i doubt that this decision would have been made for a much younger child based on 2 nights a fortnight. It is also an example of where conflict between parents has not swayed the decision, which goes against the advices on here and the Judge said that there is "conflicting case law about whether or not a shared care order is appropriate where parents cannot work together

The interesting part was regarding the reason to grant the appeal was to "avoid future court intervention", I believe this should be of utmost importance when considering making any order but it is not often the case.

Maybe I haven't read it all through correctly, but I can't see what the final order, after appeal, was for term-time. The final order at the end for lives with both parents was for half the holidays and doesn't mention the term time arrangements - so it's not clear whether the Father got the Sunday night or not. Presumably he was happy with every other week-end and midweek tea times and just wanted the holidays defining and disruptions to cease.

It suggests there was some distance for it only to be midweek tea times. I'll read it all through properly when I'm less tired! But the main point is that it was a "lives with both parents" order and the reasons why. That doesn't have to be equal time.

 

[BigLes]

This is a recent Judgement from an appeal where the Judge agreed that a lives with both parents order would benefit the children. The Father appealed the final order that said the children should live with the Mother. Point 81 has some useful points and terminology and this Judgement is useful caselaw.

"The welfare advantages for each child of a shared lives with order in the present case would be that:

i) It would make it more difficult for either parent to regard themselves as being in control of contact or to seek to control contact – a problem that the Judge had specifically identified.

ii) In particular, it would mitigate the effects of the Respondent's attempts to control contact which the Judge had noted from the ISW's evidence and had himself observed were not positive. Rather than ordering the Respondent to make sure the children spent time with the Appellant, a shared lives with order would set out arrangements for the division of time in the same terms for each parent, if not the same periods of time. It would thereby put the parents on an equal footing when seeking to make arrangements for the children.

iii) It would also put the parents on an equal footing with regard to holidays abroad including during school holidays when the children are going to spend equal time with each parent.

iv) A shared lives with order would signal to each parent that each was of value in the lives of the children, something the Judge had found each parent failed to appreciate.

v) It would also signal to the children that each parent has, in their capacity as parent, the same inherent importance in the children's lives.


vi) It would promote a sense of stability within the family: whatever the disagreements between the parents, the court had ordered that the children shall live with both of them."

AZ v BX (Child Arrangements Order: Appeal) [2024] EWHC 1528 (Fam) (21 June 2024)

I've also added this to the Legal Resources section as Caselaw

Because this is recent, does it sort of trump other case law? Or can a counter-argument still be made by the other party like “ahh but the Court of Appeal said xyz and that’s a higher court and more important so blah”?

 

[Ash]

Not sure - I think recent case law is always useful and could possibly trump other case law. It’s not new case law really but important it’s being said in 2024 because a lot of it for shared care os pre child arrangements ordered when it was called “shared residence” rather than “lives with both”.

But it does seem to do something new as well I think by stating that lives with both is not just a “label “ which a lot of lawyers describe it as.

 

[BigLes]

87 ix) "...However, as set out above, the child arrangements order he made was likely to embed the notion that the Respondent was in charge when making arrangements for the children. Indeed the post-hearing correspondence underlines that risk. A shared lives with order would encourage the parents to work together on an equal footing rather than the Respondent being in the driving seat. Far from creating "chaos" as the Respondent submitted, a shared lives with order would regularise their equal standing in relation to each other which would be more conducive to working relations. The Appellant would not feel that he was regarded in any way as inferior as a parent. The Respondent would not feel that she was regarded in any way superior as a parent. This would be beneficial to their discussions about child arrangements."