(Court of Appeal; Thorpe and Wall LJJ and Black J; 22 January 2008) Agreements between the separated parents concerning the children broke down when father asserted that mothers elder child by previous relationship had sexually abused the couples children. Following investigations the child protection agency and social services closed the file because the couples children had given differing accounts to the father and the child protection agencies. The elder child had consistently denied any improper behaviour. In the residence proceedings the judge nonetheless concluded that the elder child had abused her half-siblings. The judge rejected the CAFCASS recommendation that the children make their main home with the father, but went on to adopt the pattern of residence proposed by CAFCASS that the children spend 9 out of 14 nights with the father and 5 out of 14 with the mother.
The court allowed the mothers appeal; it had not been open to the judge to make the grave finding against the elder child that he had made, seemingly without any analysis of the evidence. Given the undoubted wisdom of keeping the children together and of enabling them to enjoy the benefits of a shared care order, equality was in their best interests, and would be ordered.