The Court of Appeal has ruled in favour of a joint residence order involving the father of two children dismissing an appeal suggesting he that should only have contact with his children.
T v T concerned a woman and her same sex civil partner who had answered an advert from a gay man who wished to become a father. They also wished to have children and two children were subsequently born to the man and the woman – a girl, now aged seven, and a boy aged ten. They had grown up living mainly with the mother and her civil partner, but had regular contact with their father, who held parental responsibility.
The relationship between the man and the couple deteriorated and they went to court to resolve the situation. Recorder Simon Barker QC ruled in favour of a joint residence order between the child’s mother and father. The children would continue to live with the mother and her partner, but stay with their father every other weekend, plus one day during the intervening weeks. During the holidays they would spend “more protracted periods” with him.
The judge granted the mother’s civil partner parental responsibility but he refused her application for a joint residence order in favour of her and the mother, with contact only for the father.
The couple appealed. Shortly before this appeal came to court, the father said he would agree to a joint residence order, with all three adults included. The couple only agreed, however, to seek this as a second option, as they “did not feel that that would address the difficulties that they perceived there to be over the children”.
At the Court of Appeal, the couple argued that the Recorder’s ruling had not adequately reflected that the fact that the mother and her partner always been the children’s primary carers, saying a joint residence order to the mother an d father marginalised the mother’s partner. The additional time to be spend with the father was too much and not in the children’s best interests, they insisted, and also too complicated given that the couple had a strained relationship with the father.
But the Court of Appeal was unimpressed. Lady Justice Black said the original judge had the had the advantage of hearing the evidence first hand. She did not accept that the judge’s ruling had been too complicated. It contained detail precisely because the three parties involved had a poor relationship and did not communicate well.
She noted the significance of the fact that the mother’s partner had been granted parental responsibility. “One might, perhaps, be forgiven for thinking that someone who has been granted parental responsibility has truly been recognised as a parent of the child. In this case, three people have parental responsibility…and have thereby been recognised as parents; it seems to me that that probably accords with how things look at the moment from the children’s point of view.”
The judge noted the increasing prevalence of shared residence orders, which are now recognised as sometimes in the child’s best interests. She added, however:
“What is profoundly disappointing is to see how, in practice, instead of bringing greater benefits for children, shared/joint residence can simply serve as a further battlefield for the adults in the children’s lives so that even when the practicalities of how the child’s time should be split are agreed or determined by the court, they continue to fight on over what label is to be put on the arrangement.”
She dismissed the main appeal but also considered another point which had been raised – what would happen if the mother died. It had been agreed that if the mother died there would nothing to prevent the father from claiming the children should come and live with “as the last surviving holder of a residence order”.
Lady Justice Black said:
“…in the event of a dispute with [the father], [the mother’s civil partner] would be forced to make an urgent application for an interim residence order in her favour if she felt that it was in the children’s best interests to continue to spend a significant amount of their time with her.”
She highlighted the father’s previous agreement to a joint residence which included the mother’s partner.
“Such an order does seem to me to provide a means to avoid a distressing disruption to the children’s lives at a time that would be acutely difficult for all concerned. It would at least ensure that the status quo with regard to living arrangements would continue until any issues could be sorted out in an orderly fashion by the court.”
The judge therefore ordered the substitution of the existing residence order, which included only the mother and father, with a new one which included the mother’s partner.
Lady Justice Black concluded:
“In parting with the case, I would invite the attention of all of the parties once again to what the Recorder said to them at the end of his judgment. He told them that they must put aside their differences and that if the adults do not manage to resolve things by communicating with each other, the children inevitably suffer and the adults may also pay the price when the children are old enough to be aware of what has been going on. It is a great shame that that sound advice does not appear to have been heeded. It is a tremendous privilege to be involved in bringing up a child. Childhood is over all too quickly and, whilst I appreciate that both sides think that they are motivated only by concern for the children, it is still very sad to see it being allowed to slip away whilst energy is devoted to adult wrangles and to litigation. What is particularly unfair is that the legacy of a childhood tainted in that way is likely to remain with the children into their own adult lives.”