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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> T v T [2010] EWCA Civ 1366 (01 December 2010) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2010/1366.html Cite as: [2011] 1 FCR 267, [2010] EWCA Civ 1366, [2011] Fam Law 240 |
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THE
HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL
DIVISION)
ON APPEAL FROM RECORDER
SIMON BARKER QC
BRIGHTON COUNTY COURT
Strand, London, WC2A 2LL |
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![]() |
B e f o r e :
THE
MASTER OF
THE
ROLLS
LORD JUSTICE PATTEN
and
LADY JUSTICE BLACK
____________________
![]() | Appellant |
|
- and - |
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____________________
Transcript
of
the
Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DYTel
No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to
the
Court)
Venters
QC and Ms Michelle Powell (instructed by
Venters
Solicitors) for
the
Appellant
Mr Alex Verdan
QC and Ms Sam King (instructed by Mischon De
Reya)
for
the
Respondent
Hearing dates : 8th November
2010
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
Lady Justice Black :
i)The
shared
residence
order in favour of M and F did not
reflect
![]()
the
![]()
reality
of
the
children's lives. M and L were and always have been
their
primary carers,
the
children's "nuclear family" as Ms
Venters
put it. She submitted
that
![]()
the
![]()
Recorder
should have made a joint
residence
order
to
![]()
the
![]()
two
of
them
![]()
recognising
![]()
that
and
that
he was wrong
to
grant a shared
residence
order
to
M and F which served
to
marginalise L.
ii)
The
increase in
the
![]()
time
spent with F for which
the
order provided failed
to
![]()
take
into account N's
views
on
the
subject,
the
CAFCASS officer's
recommendation
against such an order in N's case, and also
that
it was foreseeable, Ms
Venters
submitted,
that
N would
react
adversely
to
![]()
the
increase. More generally, she argued
that
![]()
the
amount of
time
![]()
that
![]()
the
![]()
Recorder
provided was
to
be spent with F was
too
much and was not in
the
children's interests.
iii)
The
order was
too
complicated for
the
parties, who do not communicate well with each other,
to
manage.
Order too
complicated?
Fact finding inadequate?
"they
know who
their
parents are,
they
know
the
role
that
L plays in
their
lives, and
validation
or labelling is an issue for or, more accurately, between
the
parents and adults, not
the
children."
Whatever the
initial intentions of
the
parties when
the
children were conceived,
things
had moved on with
time
and
the
Recorder's
orders had
to
accommodate
the
position as it actually was rather
than
the
position
that
the
adults wanted or had originally planned.
33. Having listened carefullyto
all
the
oral evidence and having considered
the
documentary evidence, I have no hesitation in accepting
that
![]()
the
incident occurred at
the
![]()
time
when N was
returning
home from contact. Whether F was still present
to
witness
the
event or had driven off leaving G and N
to
cross
the
road on
their
own, which road is a narrow and not
very
busy road but one where
vision
is somewhat
restricted,
is unclear. However, either way F was neglectful of his
responsibility
![]()
to
![]()
return
![]()
the
children home and either he lied about his knowledge of what had occurred or he showed little
regard
for what had occurred when he was subsequently informed of it."
Shared residence
order inappropriate?
"The
making of a shared
residence
order is no longer
the
unusual order which once it was. Following
the
implementation of
the
Children Act 1989 and in
the
light of s 11(4) of
that
Act which provides
that
![]()
the
court may make
residence
orders in favour of more
than
one person, whether living in
the
same household or not,
the
making of such an order has become increasingly common. It is now
recognised
by
the
court
that
a shared
residence
order may be
regarded
as appropriate where it provides legal confirmation of
the
factual
reality
of a child's life or where, in a case where one party has
the
primary care of a child, it may be psychologically beneficial
to
![]()
the
parents in emphasising
the
equality of
their
position and
responsibilities."
N's views/CAFCASS
advice given insufficient weight?
"N would like moretime
but not more
time
overnight although N was not able, or perhaps not willing,
to
articulate her
reasoning
which leaves open a range of possibilities".
He was plainly mindful of Mr Bridger's evidence on the
subject of
time
with F, which he set out particularly at paragraphs 35 and 36 of
the
judgment.
Conclusions
Lord Justice Patten:
Master of the Rolls: