Practice and Procedure

RE W (CHILDREN) (2003)

PUBLISHED January 22, 2003

It was not open to the judge in the present case to make a shared residence order as a means of ensuring that there was no resistance to a contact order.Mother's ('M') appeal from a shared residence order made in proceedings concerning contact. The parents married in 1990 and had two children. Following the break down of the marriage a dispute arose as to contact. A contact order was made which provided, inter alia, that during school terms the father was to have alternate weekends with the children, and during school holidays he was to have two weeks in the summer and one week each at Christmas and Easter. The judge further made a shared residence order on the grounds that if there was any resistance to the handing over of the children, then the police could be involved to act on the residence order. M appealed on the ground that there was no basis on which to make the order.HELD: (1) What was encouraging in the present case was the way in which the parents had fulfilled the requirements of the judge's order with regard to contact. However, it could not be seen how those primary objectives where enhanced by the artificiality of the shared residence order, nor could it be seen that those objectives were weakened by its exclusion. (2) Orders under s.8(1) Children Act 1989 should be made to reflect the practical reality of the arrangements made for the residence of the children. It was not open to the judge to make a shared residence order where the children slept 320 days of the year with the mother and a pattern of visits with the father had been put in place.Appeal allowed.

[2003] EWCA Civ 116