Making a ‘shared care’ order – Guidance from AZ v BX (Child Arrangements Order: Appeal) [2024] EWHC 1528 (Fam)

On 21^st June 2024, Mr Justice Poole delivered judgment in the High Court on an appeal surrounding a ‘live with/spend time with’ Child Arrangement Order. In his judgment, Mr Justice Poole succinctly and carefully reminds practitioners and Judges when a live with/live with or ‘shared care’ order may be appropriate. The full case can be found here

Background of the case

The background of the case is neatly summarised in Paragraphs 7-9.

The Appellant is AZ, the father, and the Respondent is BX, the mother. The parties were married for 13 years and have three children, a boy, R, now aged 13, and two girls, S and T, now aged 10 and 7. The Respondent began divorce proceedings in January 2022. In early April 2022, the Appellant received a diagnosis of a very serious illness and required a course of debilitating medical treatment with a view to undergoing surgery after the conclusion of that treatment. He travelled abroad for the treatment and so was away from the children for a prolonged period in 2022. In June 2022, the Appellant applied for child arrangement orders under Section 8 of the Children Act 1989. His application was stayed to allow for him to receive treatment. The final hearing of that application took place before HHJ Richard Clarke on 27-29 November 2023.

HHJ Richard Clarke made the following final order:

“5. The children shall live with the respondent mother.

6. The respondent mother must make sure that the children spend time with the applicant father as follows:

 During school term time:

a. The children shall spend one evening each per week with their father from after school, with father collecting the relevant child from school and returning them to mother’s home as follows:

i) R on Tuesdays to 8pm

ii) S on Wednesdays to 7 pm

iii) T on Thursdays to 7pm

b. The children shall spend alternate weekends together with their father … from 4.30 pm on Friday until 5pm on Sunday with the father collecting and returning them to the mother’s home.

 During school holidays (including half terms):

c. The children shall spend one half of the school holidays with their father on dates and times to be agreed in advance in writing.”

The Judge ordered that the children shall spend such further or other time with their father as the parties shall agree in advance in writing and he made orders about indirect contact, but he did not provide for how holidays shall be defined or agreed and how birthdays or religious festivals shall be spent.

The Appeal

The Appellant appealed on four grounds as set out in Paragraph 9 and summarised as:

1. The Judge erred by not setting out a mechanism for how the parties should agree and define the holidays;
2. The Judge erred by failing to define how the children should spend their birthdays and or religious festivals;
3. …
4. The Judge erred in his approach to the law and assessment of the legal principles, facts and evidence of the case when determining whether to make a joint or sole live with order;
5. The Judge erred in his approach to the time the children spent with the Father on weekends in term-time.

HHJ Clarke made several findings and evaluations about the family which were summarised in the appeal as [Paragraph 22]:

i) There were no safeguarding issues.

ii) The parents had been incapable of working together on child arrangements and other matters in the interests of the children.

iii) The parents’ inability to work together was not due to abuse of one by the other but due to their own perceptions of each other and their mutual distrust.

iv) The parents each failed to appreciate the importance of the other in the lives of the children, which was to the detriment of the children.

v) The Respondent had controlled contact. It was not “positive” given the “negative family dynamic” that either party should seek to control contact.

If successful on appeal, the Appellant sought for the current order to be substituted with the following orders:

1. A shared lives with order.
2. Adoption of the Appellant’s proposals in November 2023 as to arrangements for school holidays and special days.
3. Extension of alternate weekend time during term times to include Sunday nights so that the Appellant could take the children to school every other Monday morning.

Regarding the grounds of appeal, Mr Justice Poole very helpfully set out his conclusions in full in Paragraph 87. In summary:

Grounds 1 and 2

Mr Justice Poole allowed the appeal under Ground 1 and refused the appeal under Ground 2.

Considering Ground 1, Mr Justice Poole concluded:

[Paragraph 88] I am driven to conclude that the Judge was wrong not to direct any defined arrangements for the children to spend time equally with each parent during school holidays in the event that the parents could not agree arrangements. That part of the child arrangements order was, on the Judge’s own findings, likely to fail leading to uncertainty for the children, further parental animosity, and further litigation. A defined default arrangement need not have been complex. The holiday arrangements were particularly important to these children who were used to going abroad and seeing family abroad during the school holidays.

With some hesitation, Mr Justice Poole determined that HHJ Clarke did not err with respect to Ground 2:

[Paragraph 89] Primarily, it is because there would be a default position even without a specific order dealing with special days. Once term time arrangements are defined, as was the case, and holiday arrangements are either agreed or resort to a default defined order, then special days fall within those arrangements. If a birthday falls on a day when the child is to spend time with the Appellant, then that is the arrangement. The children will spend days during Eid with whichever parent they are due to be living with or spending time with on those days. By alternating the first week of each holiday period annually as being with the Respondent and then the Appellant, Christmas (which the family does not in any event celebrate as a religious festival) and Easter, and other religious festivals and birthdays during school holidays, will be likely to fall sometimes during time with the Appellant, and sometimes during the time with the Respondent. A complex set of defined arrangements for religious festivals and other special days could be devised but it would not necessarily be better for the children to do so.

Ground 4

Mr Justice Poole allowed the appeal under Ground 4 on the basis that [Paragraph 91]:

I have concluded that the Judge was wrong not to make a shared lives with order. He did not give adequate reasons for his choice of order. He failed to consider the impact on these children’s welfare of the alternatives of a lives with/spend time with order or a shared lives with order. For the reasons I have set out at sub-paragraphs 86 (viii) to (xv) of this judgment, had he done so he could only rationally have decided to make a shared lives with order. Accordingly, the order lives with/spend time with order he made was outwith the range of orders he could reasonably have made.

Ground 5 

HHJ Clarke decided not to extend weekend time to include Sunday night (with return to school on Monday morning). Mr Justice Poole was satisfied that HHJ Clarke took the children’s best interests into account. The court refused the renewed application for permission to appeal for Ground 5 and states that if permission had been given, the ground of appeal would have been refused.

The court therefore substituted a new final order as follows:

i) A shared lives with order: the children shall live with the Mother and shall live with the Father and shall divide their time as set out in the orders below.

ii) During all school holidays, the children shall live with each parent for an equal number of nights, the dates and times to be agreed by the parties in writing no later than six weeks before the commencement of each holiday. In default of the parties reaching a written agreement by that time, the following arrangements shall apply:

a) Summer, Winter, Easter, and half term holidays: the children together shall live with each parent alternately, changing after:

i) The fifth night during a one-week half term holiday;

ii) Every eighth night for a longer half term holiday and during the Winter and Easter holidays;

iii) Every fourteenth night during the Summer holidays.

b) The children shall live with the Mother for the first block of consecutive nights during every school holiday in even numbered years (including years ending with 0) and with the Father for the first block of consecutive nights in odd numbered years.

iii) No separate order is made in respect of Bank Holidays, religious festivals or celebrations, birthdays or any other special days.

Live with orders in favour of both parents – Guidance

The key element from this case was the guidance about making ‘shared care’ or joint lives with orders. In Paragraph 76, Mr Justice Poole references L v F [2017] EWCA Civ 2121. Combining Section 1 and Section 8 of the Children Act 1989, and the dicta from L v F, Mr Justice Poole determined that the following principles apply to a decision whether or not to make a joint live with order [Paragraph 77]:

1. The choice of whether to make a shared lives with order or a lives with/spend time with order is not merely a question of labelling – it is likely to be relevant to the welfare of the subject children and must be made by applying the principles of CA 1989 s1. In some cases where, for example, an unmarried father does not have parental responsibility, a shared lives with order will result in him having parental responsibility whereas a lives with/spend time with order (the children living with the mother) will not. That is a material difference to take into account, although it did not apply in the present case. In every case the appropriate choice of order depends on a full evaluation of all the circumstances with the child’s welfare being the court’s paramount consideration.
2. The choice of the form of any lives with order should be considered alongside the division of time and any other parts of the proposed child arrangements order.
3. A shared lives with order may be suitable not only when there is to be an equal division of time with each parent but also when there is to be an unequal division of time.
4. It does not necessarily follow from the fact that the parents are antagonistic or unsupportive of each other that a shared lives with order will be unsuitable.

Mr Justice Poole went on to consider the analysis behind a ‘shared care’ order in Paragraphs 81-82:

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

1. 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.
2. 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.3
3. 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.
4. 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.
5. 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.
6. 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.

82. Until the parties’ separation the children had lived with and had been brought up by both parents, albeit the parents had different roles. The parties were now separated but the children would be spending extensive periods of time through the year with both parents. A joint lives with order is not reserved for cases where the children’s time is divided equally between the two parents. It can be the right order to make even if the children will spend more time with one parent than with the other. It might well not be suitable if the children would spend only a very small proportion of their time with one parent, but even in such a case, a joint live with order is not automatically excluded.

This case is an interesting reminder that the unequal division of time does not prohibit a joint lives with order. Even though the children would spend half of the school holidays with each parent, in term-time the children were only with their Father on alternate weekends (2 nights), and each child spent an evening 1-1 with their Father (but not overnight) every week. It is clear that quantum was not the only factor in the court’s mind when considering the type of order; at first blush, 2/14 nights in term-time may not sound like the children are living with both parents.

Instead, the court’s focus was on regaining a sense of stability for the children and on rebalancing the control between the parents. This was particularly important in a case where there is conflict between the parents because, with an order that the children live with their Mother and spend time with their Father, the Father would have to seek the Mother’s consent before he could take the children out of the jurisdiction on holiday. In contrast, the Mother would not need the Father’s consent to take the children out of the jurisdiction for up to a month as she would have a ‘live with’ order in her favour. This could allow one parent to control the other parent’s time with the children. By granting a joint lives with order, neither party needs consent from the other – although they must still abide by the Child Arrangements Order and could not take the children away in the other parent’s time without agreement.

Another useful reminder – Clarification of Judgments

This appeal involved requests from counsel for clarification of the judgment and a delay in perfecting the order, which prompted Mr Justice Poole to give an important reminder on the correct way to clarify a judgment with reference to the Court of Appeal judgment in YM (Care Proceedings) (Clarification of Reasons) [2024] EWCA Civ 71. In particular, Mr Justice Poole quoted Paragraphs 9 and 90 of the Court of Appeal judgment [Paragraphs 41-43]:

[9] “The delivery of a judgment is not a transactional process. Its contents are not open to negotiation. Just as the trial is “not a dress rehearsal” but rather “the first and last night of the show” (per Lewison LJ in Fage UK Ltd v Chobani UK Ltd, supra, at paragraph 114), so the judgment is not a draft paper for discussion but the definitive recording of the judge’s decisions and the reasons for reaching them. It is therefore inappropriate to use a request for clarifications to reiterate submissions or re-argue the case, or to cite a part of the evidence not mentioned in the judgment and on the basis of that evidence ask the judge to reconsider the findings. In my view it is also inappropriate to couple a request for clarifications with a warning that an application for permission to appeal will be made if the clarification is not provided. I regret to say that this case provides examples of all of these inappropriate requests.”

[90] “Finally I return to the vexed issue of requests for clarification. It may be, as Ms Fottrell suggested during the appeal hearing, that it takes time for the messages from reported cases in this Court to get through. But, if I may adopt the words of Sir Nicholas Wall P quoted above, it is high time they did. This case illustrates that the procedure is still being misused. I would therefore draw the following lessons to be learned from this case, in the context of other cases which have involved similar examples of the practice being misused:

• A judgment does not need to address every point that has arisen in the case. The court should only be asked to address any omission, ambiguity or deficiency in the reasoning in the judgment if it is material to the decisions that have to be taken in the proceedings. In care proceedings, the decisions are whether the threshold criteria for making orders under s.31(2) are satisfied and, if so, what orders should be made to meet the child’s welfare needs.
• When making a request for clarification of any perceived omission, ambiguity or deficiency in the reasoning in the judgment, counsel should therefore identify why the clarification is material to the decisions that have to be taken in the proceedings.
• Counsel should never use a request for clarification as an opportunity to re-argue the case, reiterate submissions, or invite the judge to reconsider the findings.
• Requests for clarification should not be sent in separately by the parties but rather in a single document compiled by one of the advocates. If necessary, there should be an advocates’ meeting to compile the document. Save in exceptional circumstances, there should never be repeated requests for clarification.
• Judges should only respond to requests for clarification that are material to the decisions that have to be taken in the proceedings.

[91] The purpose of the process of clarifications is to head off unnecessary appeals. In a number of recent cases, the misuse of the process has had the opposite effect. I hope that hereafter counsel will confine requests to matters which are material to the proceedings and that judges will deal robustly with requests that exceed what is permissible.”

In terms of perfecting orders, Mr Justice Poole notes [Paragraph 43]:

In cases where the parties are required to draw the order after judgment has been handed down, FPR r29.11(3)(a) requires the order to be filed “no later than 7 days after the date on which the court ordered or gave permission for the order to be drawn up so that it can be sealed by the court.” That gives an indication of the short timescale within which requests for clarification should be made.

Although YM concerns care proceedings, it is relevant for private law proceedings and is a useful reminder to practitioners about the relevant time limits and which matters can properly be put as a matter of clarification on judgment. Hereafter, following YM, there will likely be a greater emphasis on applying the correct process regarding clarifications and perfecting orders on time.

Summary

It is clear that the intention of the court is to put parties back on equal footing when it comes to child arrangements, particularly after periods of unequal presence in the children’s lives. This case illustrates the key principles that a joint live with order does not require an equal division of time with each parent and can be appropriate even when parents are not able to communicate effectively. Furthermore, Mr Justice Poole warns courts away from seeing the type of order solely as “label litigation”. Looking forward, it is likely that courts will take a stronger view on restoring balance and stability for the children involved and removing the control from one party over the other.

Simran Kamal

November 2024