Legal professionals and parents alike will no doubt welcome the Judgment of Mr Justice Poole in relation to the case of AZ v BX (Child Arrangements Order: Appeal) [2024] EWHC 1528 (Fam).
The facts of the case were those regularly seen, two parents who had separated and were unable to agree the time their three children should spend with each of them. Following an initial decision of HHJ R Clarke, whereby it was ordered that:
- children would live with mother,
- spend defined time with Father; and
- holidays be shared equally (without mechanism for how)
Understandably, the Father initially raised 5 grounds of appeal but 4 were brought before Mr Justice Poole to determine, namely:
A) The Judge failed to set out any mechanism of how the parents were to agree the division of the school holidays to adhere to the Judge’s order that “the children shall spend one half of the school holidays with their father on dates and times to be agreed in advance in writing”.
B) The Judge failed to define special occasions such as birthdays and religious festivals, wrongly suggesting the father had not set out his request for the court to address and manage these.
C) The Judge was mistaken in his approach to the law and application of the principles when making a decision the children shall live with the mother and spend time with the father.
D) The Judge was unclear as to the evidential basis for his decision to make a “Live with/spend time with” order.
Valid challenges to child arrangements acknowledged
Mr Justice Poole found that the appeal succeeded on points A and C, point B was refused and point D failed due to being considered a “discrete issue [which] can be addressed separately” [para 60]. The appeal succeeded as it “raise[d] issues about child arrangement orders which come before the family court on a daily basis: when to make a shared lives with order and to what extent an arrangements order should be defined”[para 1]
Having considered the judgment of HHJ Clarke, transcripts of the hearing, additional evidence permitted to be produced concerning messages following judgment and submissions of Counsel for the Father and Mother who acted in person, Mr Justice Poole set aside the original lives with/spends time with order in favour of a shared lives with order and made default provisions for the division of school holidays.
So, what was the takeaway from this decision? Whilst there were many, the three main points have provided a new and clear precedent as to the decision of cases moving forward and can be summarised as follows:
1. The procedure for requests for clarification following the handing down of judgment
The decision of Lord Justice Baker in YM (Care Proceedings) (Clarification of Reasons [2024] EWCA Civ 71 were reiterated by Mr Justice Poole, particularly paragraphs 9 and 51 where Baker LJ observed:
“The delivery of a judgment is not a transactional process, its contents are not open to negotiation…the judgement is not a draft paper for discussion but the definitive recording of the Judge’s decision and the reasons for reaching them”. “Counsel’s obligation [is] to draw up an order that reflect[s] the judge’s determinations, not to take the judgment as a starting point for further submissions or negotiations”.
Mr Justice Poole went on to reinforce Baker LJ’s guidance on the proper procedure and expectations for seeking clarification of a judgment (found at paragraph 90 of the judgment of Baker LJ and repeated at paragraph 42 of this case) and moving forward practitioners should take heed of this.
2. The need for less ambiguity and more clarity in orders.
It was recognized that the law “provides the court with flexibility to make child arrangements to suit the best interests of the child in each case…In some cases…the best interests of the child are served by a tightly draw, detailed order…In other cases a much looser order might be suitable” [65]. However, despite the flexibility, Mr Justice Poole made clear that “whatever form of order is made, it is generally in the best interests of a child to make an order designed to avoid further or repeat court applications.” [66] (bold and underline not within original judgment).
Therefore, it is important to take heed that “the court should not try to address every minute of the children’s lives…[but] a defined order does not have to fall into that trap. The Court can formulate orders that provide sufficient certainty and clarity without…covering every possible eventuality”. [68]
What is to be taken from this is that any final order, be it by consent or decision of the Court, needs to be finely balanced. It should not be so prescriptive it allows no flexibility but should be defined enough to give a reasonable position for common eventualities. For example, giving the chance for parents to agree holiday arrangements but a fallback position if they could not as was the final result in this case.
Indeed, the resounding message concerning the drafting and execution of any final orders was that, “where possible, and where…there are no significant safeguarding concerns, the court should use its order as a means of encouraging…parents to work together” [72]. It is imperative the order promote success and the ability to co-parent to prevent returns to court. This is particularly important given the expectation for non-court dispute resolution and the pathfinder program being trialed and rolled out across the country.
3) The “right” order for the case
The final take from this judgement was for clear guidance to be given on the types of orders made. This is a longstanding, contentious issue for parents who often feel that a lives with/ spend time with order places an unequal footing.
Naturally, whilst this is not the intention, the guidance is now clear that time does not need to be equally divided to allow for the children to live with both parents. Indeed, at paragraph 76, Mr Justice Poole reminded himself of the comments of P Jackson LJ in LvF [2017] EWCA Civ 2121 that “there was a time when the orthodox view was that shared care should not be ordered where the parental relationship is bad…but authorities show that there is no longer a principle to this effect.”
Bearing both this and the Children Act 1989 ss1 in mind, Mr Justice Poole set out clear principles at paragraph 77 for the Court to consider when deciding the type of order to be made. Namely:
A) The choice is not “merely a question of labelling” but does give different results (such as potentially conferring PR or giving the right to remove for short holidays out of the jurisdiction without permission) and “that is a material difference to take into account”. As such, 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.
B) The form of any order should be considered alongside the division of time and any other parts of the proposed order.
C) A shared lives with order does not need to equally split the time between parties and can be suitable when there is an unequal division of time. “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.” [82]
D) Just because there is acrimony between parents it does not necessarily mean a shared lived with order will be unsuitable.
He observed that “A shared lives with order would encourage the parents to work together on an equal footing rather than the Respondent being in the driving seat. Far from creating “chaos” as the Respondent submitted, a shared lives with order would regularise their equal standing in relation to each other which would be more conducive to working relations.” [87 ix]
What can be taken from this judgment is that Court’s should become concerned about the potential power imbalance a lives with/spends time with order can give one parent but that ultimately, the type of order needs to be what is best for the child. It will be interesting to see whether shared lives with orders become a more common practice moving forward.
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