(Court of Appeal; Ward, Longmore and Moore-Bick LJJ; 3 March 2009)
The parents had two children. The couple separated for a period of 18 months during which the father was the primary carer; the mother had problems with alcohol and drugs. The parents then reconciled for a further 3 years, after which the mother moved out of the family home, taking the children with her, and settled in a different town. The father applied for a residence order. The evidence at the hearing was that both parents could meet the children's needs, that the children would thrive in either household, and that both parents were capable of caring for the children more than adequately. The Cafcass officer recommended a shared residence order. The judge made a shared residence order on the basis that the children were to live with the father, but stay with the mother on alternate weekends, plus one extra weekend every 8 weeks, and for half the school holidays, plus all the half-term breaks. The mother appealed on the basis that the status quo was with her, and that the children should therefore not be removed without good reason.
The appeal was dismissed. The judge had been entitled to come to the conclusions he had reached. Since the enactment of the Children Act 1989, it was better to address the check-list factors than to rely on any presumption of fact that might arise from status quo arguments; such arguments merely meant that if children were settled in one place, the court had to have regard to s 1(3)(b) of the 1989 Act, and consider the likely effect on the children of any change in circumstance.