Monday, August 04, 2008

Re A (A Child: Joint Residence/Parental Responsibility)

Further to this post, I've been looking more closely at the case Re A (A Child: Joint Residence/Parental Responsibility) [2008] EWCA Civ 867.

The Facts: The child H was born when the mother was cohabiting with Mr A, and for the first two years of H's life, until the parties relationship broke down in July 2004, he was brought up by them together on the assumption that Mr A was his biological father. Following the breakdown of the relationship, Mr A brought proceedings for parental responsibility, residence and contact, and in the course of those proceedings it emerged that Mr A was not the father of H. It also emerged that the mother wished to leave the area in which both parties lived close by, and move some distance away to the South Coast, with the result that Mr A's role in H's life would be marginalised.

After lengthy proceedings, on 11 January 2008 District Judge Adam, sitting as a Recorder, made a joint residence order (thereby giving Mr A parental responsibility), but also allowed the mother to move away from the area. The order gave Mr A generous holiday contact with H and also provided that the mother was prohibited from introducing H to his biological father (who had played no significant part in the proceedings) for a period of two years, save by order of the court or with the agreement of the parties. The mother appealed against the order on the grounds, inter alia, that the Recorder had inappropriately linked the question of the mother and H's relocation to the acquisition by Mr A of parental responsibility, that he had made a shared residence order where such order was wrong in principle and inappropriate in the circumstances of the case, and that he had given disproportionate weight to the wishes and ambitions of Mr A to the detriment and undermining of her position as biological parent.

The Decision: The Court of Appeal dismissed the appeal. In his leading judgment, the President of the Family Division, Sir Mark Potter, stated that it was clear that the Recorder's reason for making a joint residence order was not for the purpose of recognising equal, or near equal, sharing of residential time between the parties (he intended that the mother should remain the primary carer), but rather he made the order for the purpose of conferring upon A the parental responsibility which went with it, and which the Recorder considered was merited by Mr A, whose role he did not wish to see marginalised or diminished. Sir Mark then went on to review the law on shared residence and found it clear that: "the making of a residence order is a legitimate means by which to confer parental responsibility on an individual who would otherwise not be able to apply for a free-standing parental responsibility order, as in the case of someone who is not the natural parent". He also did "not consider that the Recorder inappropriately linked the question of relocation with the acquisition of parental responsibility in this case. Whilst legally they were separate issues, they were in fact linked in the sense that the mother's desire to relocate to the South Coast was, as the Judge found, not simply a wish to move out of the same area as Mr A, but a move intended to consolidate her control over H in a manner which, combined with the distance involved in the move, raised real and justified fear of marginalisation on the part of Mr A". As to undermining of the position of the mother as biological parent he said: "I do not consider that the Recorder said or did anything to undermine the mother's position as biological parent, albeit he made findings which were not in accordance with her wishes. The Recorder (and for that matter Mr A) plainly recognised her status, not only as a fact but as a feature which entitled her to be the primary carer of H".

Commentary: The case offers useful guidance on the subjects of shared residence and parental responsibility, confirming that making a shared residence order is a perfectly legitimate way of giving parental responsibility to a non-parent, and also of preventing the relocation of the child from marginalising Mr A in his role as the father figure in the child's life.

4 comments:

  1. I am in a situation where as i knew before my son was born that i wasn't the biological father - our divorce was passed absolute one week before he was born - one week after he was born i took him to be my son and we got back together and eventually got re married - in December 2007 or before she done the same thing again and now we are divorcing again for a second time - our son is 12 and lives with me in the family home - now i am going for custody and the judge has ordered that he be told about his parentage - after a few tears it has made no difference and we are as strong together now as we have always been - on Tuesday 25th August we have the final hearing and she intends to go for a joint resadency order - she doesn't see much of our son but needs some sort of custody in order that her partner and her can obtain a council property of which once this is done she will go back to her lack of interest of our son - if i get joint residency does she become the one with prefered parental control? i have been with our son all his life and have taken him through the first year of senior school with fantastic results and she has done nothing - i do not want to loose my son

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  2. Not sure what you mean by 'preferred parental control', but joint residence does not give one parent more rights than the other, nor does it mean that the child should spend equal time with each parent.

    ReplyDelete
  3. thanks John but there are quite a lot of under lining problems - when we remarried I was kept of the tenancy and although I am still in the family home with the children it is her intent to remove me and take the family home for her and her partner - my concern is that if she gets a joint resadency as the biological parent does she automatically become the primary carer? - my son wishes to remain with me in the family home as we have done for the past nine years.

    ReplyDelete

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