[Solved] Shared Custody Case Law Examples

I was going to suggest looking on the custody minefield website, a great source of help over the years but it's saying the site is termorarily closed.

Anyone any ideas if it's going to re-open or why it's closed?

http://thecustodyminefield.com/

This link still works:

http://www.thecustodyminefield.com/flapp/sharedlivingarrangementscaselaw.html

It includes the case law I suggested in your other post, Re C [2006] EWCA Civ 235

Chapter

They have further information at http://thecustodyminefield.com/shared-parenting-research/ .

Having said, I do question if an appeal is the way to go in this case. To the best of my knowledge, you can't appeal on the grounds you don't agree with the decision, rather you'd need to show there was a procedural error or the magistrates failed to consider a relevant fact which would have led to a different decision.

I think a better approach would be to give it 6 months and apply for a variation. I think you'd be better off right now making this order work and building on it later.

Thanks for you input, superprouddad. I have consulted with a solicitor and we have already outlined strong grounds for appeal. So that's the way to go. Why throw in the towel without a fight when there is a chance of getting this resolved now instead of punting it to 6 months down the line? I hear you, but I do not share this view.

Thanks for the links, Chapter and Dad-i-d!

Could I ask what the grounds for appeal are? Were they as we discussed in your previous thread?

Best of luck with it

Thanks for the best wishes, Mojo. Yes, you're correct....it's on the grounds discussed earlier on the other thread, but he managed to make the arguments more nuanced, and thus forceful. The main case law basis will be as mentioned above by Chapter, summarized below:

Circumstances within which shared living arrangements were appropriate were further set out by Lord Justice Thorpe in the case C (A Child) [2006] EWCA Civ 235.

"...the whole tenor of recent authority has been to liberate trial judges to elect for a regime of shared residence, if the circumstances and the reality of the case support that conclusion and if that conclusion is consistent with the paramount welfare consideration."
He went on to set out those circumstances:

the child has a strong attachment to both parents, happy and confident in both homes;
there was real proximity between the two homes;
there was real proximity of the homes to the school;
there was real familiarity with both homes and sense of belonging;
the child expressed a perception of two homes;
there was relatively fluid passage between the two homes;
there was relatively fluid passage from school to the two homes;
there was some post-separation history of shared care.

My circumstances tick all of the above 100%, and the magistrates GOT IT WRONG because:

1. they ignored the actual facts on the ground (50:50 shared care had for months been fully and smoothly operational when the mother terminated contact...this isn't in dispute at all);

2. they ignored Cafcass recommendations with zero explanation as to why;

3. they based their conclusion on the mothers' reasons, which are totally irrelevant to shared care;

4. they had absolutely zero evidence to support that the arrangement would be disruptive and mentioned none whatsoever. These are the primary grounds.

We added 2 more just to reinforce the case, namely:

5. that the magistrates acknowledged that my daughter can express her wishes about the matter, yet concluded the case without either ascertaining or taking into account her wishes ;

6. preventing father from participation in daughter's education (I'm considering citing Re K [2008] EWCA Civ 256 to support the last point and also perhaps Re W [2009] EWCA Civ 370 due to a long history of repeated denial of access/contact by the mother over the course of the last 3 years....admittedly the last case example might be a stretch, but I have to give it all I can, right?)

If all of the above had been taken into consideration by the court, both the solicitor and myself feel that the magistrates would have reached a completely different conclusion and thus made a totally different order.

Any thoughts?