Family Law Hub

M (A Child) [2014] EWCA Civ 1755

Appeal by M against an order that the child live with F in London in the expectation that M, who lived in Newcastle, would follow and share the child's care, on the basis that that condition was an impermissible intrusion upon her right of free movement within England. The order was set aside.

  • B4/2014/2485

    Neutral Citation Number: [2014] EWCA Civ 1755

    IN THE COURT OF APPEAL (CIVIL DIVISION)

    ON APPEAL FROM THE PRINCIPAL REGISTRY

    FAMILY DIVISION

    (HER HONOUR JUDGE SULLIVAN QC)

    Royal Courts of Justice

    Strand

    London, WC2A 2LL

    Wednesday, 5 November 2014

    B e f o r e:

    LORD JUSTICE McFARLANE

    SIR STANLEY BURNTON

    IN THE MATTER OF M (A CHILD)

    DAR Transcript of the Stenograph Notes of

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    Mrs J Okoye (instructed by Ben Hoare Bell) appeared on behalf of the Appellant

    Mr M Fletcher appeared on behalf of the Respondent

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    LORD JUSTICE McFARLANE: This appeal arises out of private law proceedings relating to a young boy, W, born on 3 April 2009 and, therefore, now 5 and a half years of age. The issue in the case so far as the appeal is concerned arises from the judge's order.

    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.

    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 seeks to appeal against that outcome. She does so with permission granted by me at a hearing on 20 August 2014. In very short terms, she makes three points.

    First of all, that the moving of the son to London to be with the father, in the expectation that the mother will follow, was, in reality, a condition on the joint shared care arrangements requiring the mother to relocate from Newcastle to London and, as such, that condition was an impermissible intrusion upon her right of free movement within England. Secondly, it is submitted that the findings that the judge made about the father are incompatible with the welfare analysis of the judge and that the judge failed to take account of those findings when she came to consider the order that she made. Thirdly, that the outcome is simply "wrong" in terms of meeting the child's welfare needs.

    In order to explain the background in some short detail, it is necessary to recite something of the history. Both parents are originally from Tanzania. The father previously had been married to another lady, EV. As a result of that marriage, three children were born. The eldest is now in his or her mid 20s and has lived for a long time in Tanzania. The younger two, aged 22 and 19, are both still living in this country with the father, albeit as university students. Sadly, EV died in 1997.

    Some time thereafter, in 2004, the father met W's mother in Tanzania. Both of them share a background in academic/scientific work and it may be through that connection that they met. Be that as it may, they married in Tanzania in August 2006 and the mother came to England to join the father in December 2006. W, as I have indicated, was born in April 2009.

    The judge records, and indeed all the evidence indicates, that really from a very early stage, the relationship between the father and the mother was corrosive. The judge says that they both agreed:

    "There has been an appalling history of misery for everyone within that home for a number of years, both before and after W's birth in 2009."

    The mother apparently described the atmosphere in the family home as "toxic" and that label was picked up by the Cafcass officer and has been deployed in submissions before this court.

    The circumstances in the home progressively seem to have led the mother to adopt a strategy to minimise her exposure to the other members of the household, particularly the father. She typically would feed W in his room and spend time herself away from the family there. As time went on, she came to cook for herself and for W separately. Again, in recent times, progressively she would absent herself from the family home for quite substantial periods, taking W with her. This is a matter about which the father was rightly critical, because he did not know or have much of an idea as to where she was or where his son was and when she was coming back.

    Matters eventually came to a head at the beginning of 2014. The first sign of that is that on 7 January 2014, the father issued an application for a residence order on the basis that the parental relationship had now broken down. The mother was absenting herself from the home with W on a regular basis and he required a residence order to secure W's residence with him in the family home.

    A month later on 7 February, the mother unilaterally removed W from that home environment and took him to live with her to Newcastle upon Tyne, where she had been able to obtain some accommodation in the home of a relative. It is in that accommodation that she remains living with W to date. He is enrolled in a local school. The evidence before the judge was that she was well settled there and so was W. The judge found that it was clearly in the mother's best interests to remain living in Newcastle, where life was all together much less stressful and more orderly for her.

    The issue for the court was where W should live. Inevitably, given the high level of conflict and misery that had characterised the parental relationship, the court was faced with a whole schedule of allegations and counter allegations of fact made by one party against the other. A good half, if not more, of the judgment is taken up with the judge's analysis, distillation and, insofar as she felt it necessary, findings on those. I am not going to labour this judgment by listing them all, but they were numerous.

    Insofar as allegations that the father made against the mother are concerned, in reality, very few were proved or found to be relevant or significant. The judge did find proved the number of occasions when the mother absented herself with W from the home in the manner that I have described. She did find proved that he was being fed in his bedroom and removed from the ordinary family environment by the mother, but the judge found that this aspect of the factual background was not "hugely significant" because it was established that W at other times was free to come out and go around as he wished.

    The judge also found that the mother had committed two offences of shoplifting and, in 2013, had contemplated suicide. But, again, the judge held that that did not seem to be to her significant in the reordered family life as it now was.

    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 judge went on to find that the father sought to control the mother in a number of other ways in the household. One aspect was that he kept a very tight rein upon the purse strings. His diary was one of the key documents in the trial. The judge indicates that the recordings in the diary so far as occasions when he gave money to the mother were on the basis that this was "munificence on his part" and a subject that needed to be recorded in the diary. The judge was satisfied that the mother was not given sufficient money to buy clothes for herself and that the father controlled the food that was bought, albeit that the mother was expected to cook it.

    The judge went on to find that the father was emotionally controlling in that respect and in other respects about the way the household was run. The judge concluded in this regard by saying that she was satisfied that there came a time when the mother, in effect, ceased to carry out cooking for the father, which was the father's expectation. The judge carries on:

    "She went on to say that she was suffocated in that home... She was, I find, worn down by the behaviour of the father in terms of his parsimonious behaviour with regard to the way she was given money and the way she was allowed to live."

    Those, so far as I can see, are the key findings that the judge made in relation to the factual background. From paragraph 35 onwards of her judgment, she went on to consider the outcome for the children. It is necessary to set out a number of paragraphs from the judge's judgment in order for readers of this judgment to understand the issues in the case.

    I have described the geographical divide between the parties and so far as they were concerned, their stance before the judge was either that W should remain living in Newcastle with the mother or that he should move to live with the father in London. It was the Cafcass officer, Mr Power, who suggested a more finessed outcome in which the child would move to live in London, but that the mother would follow him there and be able to arrange accommodation for herself in London. The judge deals with this at paragraph 42 onwards of her judgment:

    "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."

    Following those observations, the judge went on to make a number of positive findings about mother's character, her degree of robustness, intelligence, resourcefulness, and her ability to arrange her life in a sensible fashion.

    The judge concluded that the possibility of a shared care arrangement with both of the parents having a substantial amount of time with W really was not to be contemplated if he remained living in Newcastle because of the logistical factors, in particular the father's job and his responsibility towards his, albeit adult, offspring in London. In paragraph 45, the judge said this:

    "Therefore, if there is to be a shared care arrangement, then it is more likely going to be successful in London."

    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 seperated. 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 and I will return to parts of them in due course. Before doing so, it is necessary to look in brief at the legal context in which the submissions about a possible "condition" of the child arrangements order have been made.

    The earliest decision of note on this point is Re:E (Residence: Imposition of Conditions) [1997] 2 FLR 638. In that case, Butler-Sloss LJ, as she then was, made the following observations:

    "A general imposition of conditions on residence orders was clearly not contemplated by Parliament and 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."

    Then a short time later:

    "The correct approach is to look at the issue of where the children will live as one of the relevant factors in the context of the cross-applications for residence and not as a separate issue divorced from the question of residence."

    That observation by Butler-Sloss LJ was considered in the following cases, in particular, Re:S [2001] EWCA Civ 847 where Thorpe LJ said this at paragraphs 24 and 25:

    "24.I am in no doubt that, in defining the possibility of exception, Butler-Sloss LJ was guarding against the danger of never saying never in family law litigation. The whole tenor of her judgment is plain to me, in that she was giving the clearest guide to courts of trial that, whereas it was not safe to say never in cases in which the imposition of such a condition would be justified, it would be highly exceptional and probably restricted to a case, as yet unforeseen and may be difficult to foresee, in which the ability of the primary carer to perform to a satisfactory level required the buttress of a section 11(7) order.

    25. Certainly, in my opinion, her judgment is not to be interpreted as giving trial judges a general latitude to strive for some sort of ideal over and above the rival proposals of the available primary carers. As is well argued in the appellant's skeleton, that approach could lead to quite unsustainable restrictions on ordinary adult liberties, extending even to the secondary carer's chosen way of life."

    Clarke LJ, as he then was, said this at paragraph 34:

    "34.I do not read Butler-Sloss LJ as specifying precisely what cases would amount to exceptional cases and what would not. She simply gave some particular examples. I do not read her judgment as limiting the exceptional cases to the cases where the court was concerned about the capabilities of the primary carer. To my mind, it could scarcely do so given the words of the statute. However, I entirely accept the proposition that the court should not ordinarily dictate to the primary carer where he or she should live. Thus Butler-Sloss LJ made it clear, for example, that the court must not impose conditions simply because the proposals for the particular child are not ideal."

    Finally, the issue in terms of authority from this court came round full circle back to Butler-Sloss LJ in the second time that Re:S was before this court at [2002] EWCA Civ 1795. At paragraph 17 of her judgment, having referred to what Thorpe LJ and Clarke LJ had said in the first Re:S, Butler-Sloss LJ said this:

    "In accordance with the decisions which I set out above, the general principle is clear that a suitable parent entrusted with the primary care of a child by way of a residence order should be able to choose where he/she will live and with whom. It will be most unusual for a court to interfere with that general right of the primary carer. There will however be exceptional circumstances in which conditions will have, in order to protect the best interests of the child, to be imposed albeit those conditions will interfere with the general right to choose where to live within the United Kingdom. I did not intend in my judgment in re E to exclude the possibility that an exceptional case might arise in which a parent against whom there is no complaint might nonetheless have to face some restriction of movement. Section 11(7) provides a safety net to allow for the exercise of discretion under the provisions of section 1 where the paramountcy of the welfare of the child exceptionally requires the court to impose restrictions upon the primary carer which otherwise would be unacceptable. I could not, as Clarke LJ pointed out in paragraph 34, in accordance with the wording of section 11(7) shut the door on the exceptional case. I respectfully agree with the interpretation given by Clarke LJ to that passage in my judgment."

    Those words from those judgments make it plain to me that it remains an exception for the court to consider imposing a condition as part of a S.8 order on parents as to where they live within the United Kingdom and, in particular, within England and Wales. The power in the statute to impose a condition is contained in section 11(7) of the Children Act 1989. Despite the widespread amendments to the legislation that have taken place earlier this year, those provisions remain unchanged and, therefore, the observations of the judges of this court in the earlier cases remain good law.

    In the light of that, what is the mother's case? Indeed, I have summarised it already in this judgment. Although the first point relates to conditions, Miss Okoye, counsel who represents the mother before us as she did before the first instance judge, submits that, whilst the word "condition" is not used by the judge, in reality, the judge was imposing a condition, a requirement, a strong expectation upon the mother to move against her wishes from Newcastle, where she had become settled, back to London and that the judge was acting in an impermissible way by undertaking that exercise or imposing that structure upon the mother.

    Miss Okoye submits that the judge should have followed the advice of Butler-Sloss LJ in Re:S and Re:E and simply looked at what each of the two parents were offering in their respective homes, one in Newcastle, one in London, and then made a choice. To require one of them, the mother, to move by enticement, by necessity or because of the strong bond of love that exists between mother and son was to go outside the court's jurisdiction.

    The second line of the appeal is put forward by Miss Okoye on the basis of the quite strong findings, as she submits they are, that the judge made against the father in contrast to those made against the mother. She points to the controlling nature of the father, as the judge found him to be, and the impact that had had on the mother, despite the robustness that the judge identifies in her make up.

    Miss Okoye says that, to use her word, there is a schism between the fact finding part of the judgment and the welfare analysis, or to use the word I suggested, there is a dislocation and they are disconnected. Miss Okoye submits that at no stage does the judge deploy the adverse findings that she made about the father's controlling nature in deciding how the arrangements for W would work or could work in his best interests, given the imbalance of power and the controlling background that had been described.

    Thirdly and finally, Miss Okoye simply says this is an unworkable order. It is made by the judge without any basis or understanding of how the mother could move to London and establish herself in anything like a viable life here. It was, to use a phrase from my mind rather than counsel's submission, an expression of hope by the judge, rather than the endorsement of a clear and settled plan. It is submitted that it was simply wrong for the judge to gamble with W's welfare in this way. She should have banked upon the known knowns in the case, which were, (a) that he was happy and settled in Newcastle, and (b) that he had been happy and settled with his father and siblings in London and the judge should have made a straight choice between the two.

    Mr Matthew Fletcher appeared on behalf of the father and made submissions. I wish to express, first of all, my gratitude to Mr Fletcher for coming into the case at what is clearly a late stage. The father had wished to be represented, but, for understandable reasons, had exhausted his resources through the instruction of lawyers at the first instance hearing. The father had done the best he could, and he did well, in putting forward his arguments before this court as a litigant in person, but it is a benefit that he has been able to instruct Mr Fletcher. Undoubtedly Mr Fletcher has been able to bring a family lawyer's mind to the arguments for the father and, in particular, has been able to make submissions designed to meet the case about "condition" that I have described. I also, as well as expressing gratitude to Mr Fletcher, express admiration to him for the clarity and force with which he has been able to put the father's case.

    Mr Fletcher makes a number of points. The first is that the judge was express in her finding that, at the time of separation, namely February 2014, neither parent was the primary carer of W in London. W had been brought up by the shared care of both parents. That submission is plainly right.

    Secondly, Mr Fletcher submits that only reason that has led W to be in Newcastle is that he was abducted there by the mother, unilaterally and without the father's knowledge or consent, and that the judge had to make her decisions about W in the light of that and that there should have been some priority given to the fact that the establishment of the home in Newcastle had been achieved in that way.

    Thirdly, he submits that, contrary to the arguments of Miss Okoye that there is a schism between the findings of fact and the analysis, the judge did bring the negative findings that she had made into her analysis. Although I have quoted paragraph 48 in its entirety, Mr Fletcher is right to point out that the judge says this within that paragraph:

    "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."

    But the main force of Mr Fletcher's submission is in the final point that he makes. He meets the condition argument head on by submitting that the judge did not make a shared order in this case. She did make a clear choice between W continuing to live with the mother in Newcastle or going to live with the father in London and the judge chose the father and London.

    In support of that submission, Mr Fletcher draws attention in particular to one passage in paragraph 48 and two in paragraph 49. From paragraph 48, he draws our eye to the following:

    "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."

    In paragraph 49, this:

    "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."

    Finally this:

    "...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 seperated. 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."

    So Mr Fletcher submits the judge was putting the father entirely in the driving seat as the principal carer and that situation would only change when and if the mother moved to London. He lays particular stress upon the judge's acceptance that the court cannot force the mother to move back to London. He submits that the judge, therefore, made her order with her eyes wide open to the fact that she had to contemplate the option of the mother not moving to London.

    The judge chose home in London because, for the reasons that I have indicated in the judgment, that was the child's home until February. It was his familiar turf, as it were. He was familiar with the school, the church, his half siblings and the house there, and, says Mr Fletcher, the judge grasped the nettle and chose between the two options of Newcastle and London.

    I turn to my discussion now of these matters. This is an unusual case. The form of order made by the judge, whether it be a condition or not, is out of the ordinary, but that of itself is no more than an observation. Certainly, the submissions that have been made have assisted me in trying to understand quite what the structure was.

    I turn first to consider whether the judge did seek to impose something akin to a condition, albeit by the back door. Despite the attractive nature of Mr Fletcher's submissions and the words that he has taken us to in paragraphs 48 and 49, I consider that there is, in fact, no doubt that the judge was choosing between two options, one of which was Newcastle and the other was coming to London. I make that conclusion from the clear words of paragraph 47, which I have already quoted. There the judge says that she is looking at:

    "those two options. Those really are the only two options."

    Then, within the substance of paragraph 47, she describes option one as "W stays in Newcastle with the mother", and option two is "she comes down and London and she with the father, together, care for W". She refers to the Cafcass officer indicating that if that happened, he would expect the mother to have "at least half" the care of W.

    That observation from the judgment is, to my mind, conclusive, but when one looks at the draft order that has apparently been before the judge, again, the wording is clear. The order provides in paragraph 9, under the substance of the child arrangement order, this:

    "from such time that the mother moves to London, W shall live with his father and mother with the principle of equal shared time."

    Then some specifics are given.

    So, again, contrary to the submission of Mr Fletcher, the judge was not putting the father in the driving seat as principle carer. It is plain that her primary position was for the mother to come to London and then have equal care with the father. So I do consider that the judge was approaching the decision she had to make on the basis that, as a result of the orders she would make, the mother would come to London and deliver, option two, shared care in London, because the judge’s order would move W to live there.

    Whilst I accept the argument that there was no primary carer as at February 2014 when the mother left the family home in London, the choice for the judge was between two potential primary carers, father in London, mother in Newcastle.

    An order that required that potential primary carer to move from Newcastle, in my view, engages the mischief that the observations made in Re: E and the two Re: S decisions refer to. It is an intervention by the court which goes beyond what the law can require, save in exceptional circumstances and no one here submits that the circumstances are exceptional.

    So far as I am concerned, there is a substantial level of concern over the structure of the judge's decision and the use of the choice of home for the boy as being a way of enticing or leading the mother to return to London in a way which would be impermissible if the judge had been overt and made a condition of her order.

    Secondly, if this is not a condition in that sense, I am very concerned that the judge endorsed this way forward and chose the pattern of care for W that she did without any real idea of what actually would occur on the ground. Although she hoped that there would be "equal" time in London, and that is the word used in the order, and although Mr Power had contemplated that the mother would have "at least" half of the care and the judge, even putting it at a low level, thought the mother would have "a substantial part of the care", there is no indication in the judgment of how that would be delivered.

    The judge was forced simply to imagine that the mother would find accommodation, maybe in a refuge or somewhere else, maybe close to where the child lived or not, and somehow this equal care would materialise. There is no analysis of how that would happen. Given the findings of fact that the judge made about the power imbalance in the relationship and the potential for the father to be controlling, it was necessary, in my view, for the judge to engage with that issue and draw it far more fully into her welfare analysis. It really only surfaces in the passing comment that Mr Fletcher was able to take us to.

    But, I ask rhetorically, why was it important for the judge to make the findings of fact that she did against the father if she was not going to deploy them in her welfare analysis? If they had been deployed properly, I really question how the judge could have considered that a shared care arrangement between these two would operate in any way that was beneficial for the child.

    It is still the case that 50/50 shared care arrangements between parents are comparatively rare in private law children cases. Research shows that a number of factors have to be in place, practical matters such as the close geographical proximity, but, above all, the couple have to be on reasonable or good terms so that the to and fro of every day life for a child is accommodated without undue emotional fallout.

    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. Given her findings of fact, I cannot see how the judge could contemplate a shared care arrangement of the type that she endorsed here.

    If, contrary to the judge's expectation, the mother did not go to London and remained living in Newcastle, then it is questionable whether even the level of contact in the draft order, once a fortnight effectively alternatively in London or Newcastle, could work. Finance is difficult for each of these two parties. The distances are substantial. Although the judge describes how the child might be able to entertain himself with electronic gadgets and other diversions during the journey, the sheer impact of making these journeys on the parents, financially and otherwise, is not to be underestimated.

    If the mother was to remain in Newcastle and W was to be living in London, there is, to my mind, a real possibility that he would lose his relationship entirely with the mother. The judge simply does not entertain that outcome as one of the options that she was considering. In my view, she should have, on the evidence, considered that, particularly because, as I have indicated, at paragraph 46 she held that it was "vital" for him to have the continued love and care of his mother.

    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.

    The question that follows, if my Lord agrees with that outcome, is whether this court should now move forward and make an order itself in place of the judge's order or that the case should be remitted to the family court, possibly to a different judge, to re-undertake the first instance exercise.

    Mr Fletcher rightly made plain that he was not contemplating having to deal with that issue at this hearing, because counsel for the mother had indicated that she would be arguing for the matter to be remitted to the lower court. We would, therefore, give time now for counsel to make further submissions.

    But for the reasons that I have given, I would allow the appeal and set aside the judge's order.

    SIR STANLEY BURNTON: I agree.

    SMITH BERNAL WORDWAVE

Judgment, published: 22/01/2015

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Published: 22/01/2015

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