Residence Case Law


But insofar as the Lord Justice imported a general test of exceptional circumstances into the interpretation of s 11(4) of the Children Act, his observations appear to me to have been obiter. I respectfully disagree with him. The section does not import such a constraint. Having said that, I would like to reiterate what I have already said, that the usual order would be a sole residence order, and that there has to be positive benefit to the children in making an order which is not the conventional order. Consequently, a shared residence order is an unusual order which should only be made in unusual circumstances. Each case, as I have said, must be decided on its own facts. A judge will exercise his discretion in accordance with the sections of the Children Act and in accordance with the checklist in s 1. The judge will decide which order, if any, is to be made and whether it is better to make an order than not to make one.

(This is a case where the father lived in the matrimonial home and had staying contact with approximately a third of the time in the father´s care, persisting for over a year. The courts are moving away from exceptional circumstances towards a positive benefit for the children in awarding residence. In this case residence was to be a change of status rather than a change in the contact arrangements.)


‘“… it is not expected that it would become a common form of order partly because most children will still need the stability of a single home, and partly because in the cases where shared care is appropriate there is less likely to be a need for the court to make any order at all. However, a shared care order has the advantage of being more realistic in those cases where the child is to spend considerable amounts of time with those parents, brings with it certain other benefits (including the right to remove the child from accommodation provided by a local authority under s 20), and removes any impression that one parent is good and responsible whereas the other parent is not.”’

Re A (a Child) [2007] EWCA Civ 899

{Change of residence to father on the grounds that the mother is incapable of change regards contact and she has mental health issues}

It is apparent by looking at the learned recorder’s involvement in this case, that he has repeatedly made findings as to the frustration of contact: he issued the clearest of warnings; he was in receipt of compelling professional evidence suggesting that the mother lacked insight or the capacity to change and, of course, he had the impact of that video. In my judgment, its importance matters rather less as to what one precisely makes of it but as providing a vivid illustration of the mother’s lack of insight, or ability to change, when it is appreciated it is in the context of the judge having given the clearest possible warning that he would consider a change of residence were the difficulties not to abate.

31. In my judgment, the learned judge was fully entitled to follow what, admittedly, was a dramatic course; it was one that will bring real if transitory cost to the child but one in which, in my judgment, he was fully entitled to carry through. There was simply no real alternative and, had the judge not made the order that he had made, in effect, the court would be giving up on this family and allowing the mother to behave in whatever way she chose.

C (A Child) [2007] EWCA Civ 866

{Another change of residence case}

The case is of interest as it demonstrates a robust approach to the mother’s resistance to contact. Counsel for the mother had argued that the judge had been driven by the desire to punish the mother and not the interests of the child. However Ward LJ reviewed his judgment and concluded that the judge had taken the relevant factors into account and was within his discretion to make the transfer of residence order. He then added some comments on the claim that the judge could have made no order stating that to abdicate responsibility for a decision is “why week after week fathers come to this court protesting that the court is powerless to enforce its orders…. This time the boot is on the other foot, and if a different conclusion has been reached in this case then let it be shouted out from the roof-tops.”

M v H [2008] EWHC 324 (Fam)

A case where shared residence was in place but a decision as to whether the child should have her schooling in the UK or in Germany. Because of the mother´s rigidity schooling was to be maintained in the UK with the father.

M (Children) [2008] EWCA Civ 66

A case where a shared residence order had been granted in the father´s favour with nine days a fortnight to the father.

Thorpe LJ, while agreeing that a shared residence order was appropriate, rejected the judge’s conclusions on the division of contact time, instead imposing equality as both the children’s wishes required it and that should be the starting point in any shared residence arrangements.

Re W (A Child) [2009] EWCA Civ 370

I should make clear, however, that, although therefore an inability of parents to work in harmony does not, by itself, amount to a reason for making a shared residence order, a possible consequence of their inability to do so, namely the deliberate and sustained marginalisation of one parent by the other, may sometimes do so.

“…Such an order emphasises the fact that both parents are equal in the eyes of the law and that they have equal duties and responsibilities as parents. The order can have the additional advantage of conveying the court’s message that neither parent is in control and that the court expects parents to co- operate with each other for the benefit of their children.”

{Also the judge stated that a contact order is irrelevant because a shared residence is in force. Moreover, the residence order should specify the arrangements as to when and where the child resides is more appropriate}

Re AR (A Child: Relocation) [2010] EWHC 1346
52. I am clearly of the view that a joint or shared residence order should be made. Indeed, such an order is nowadays the rule rather than the exception even where the quantum of care undertaken by each parent is decidedly unequal. There is very good reason why such orders should be normative for they avoid the psychological baggage of right, power and control that attends a sole residence order, which was the one of the reasons that we were ridden of the notions of custody and care and control by the Act of 1989. A joint/shared residence order is not inapt even if leave to relocate is granted: see Re G.

The judge also raised the paramountcy principle (childrens welfare is paramount) as directed by the statutory checklist from the childrens Act 1989. In this case it wasn´t in the childs best interest to relocate abroad.