Family lawBy David Burrows, David Burrows, BristolShared residence ordersRe D (Children)(Shared Residence Orders) (2001) The Times, 5 January, CAIn Re D (Children)(Shared Residence Orders), the county court judge had ordered that there be a shared residence order.

The mother appealed: she said that Court of Appeal authorities suggested that a shared residence order should only be made in exceptional circumstances and where it could be shown that there was a positive benefit for the child or children, and that the background to this case showed that there were substantial issues still arising between the parties which had not been resolved.Hale Lord Justice found that the children had lived with both parents for some time and that the issues remaining to be resolved between the parties were of detail rather than substance.

It seemed to her that a positive benefit for the children could be derived from both parents being recognised by a shared residence order.

Dame Elizabeth Butler-Sloss agreed and proposed a relatively low threshold for such an order: that it showed that it would be in the child's interest, not necessarily of positive benefit.There may remain difficulties still with some judges and district judges on consent orders and the no order principle (Children Act 1989 s.1(5)).

It is to be hoped that such difficulties, where parties ask for an order, will nowadays be rare indeed.

Where parties do not agree then Re D plainly gives more impetus to an applicant positively to apply for a shared residence order where children might want it, where extensive contact arrangements or shared living arrangements are in place and so on.

This decision is helpful in promoting the flexibility for which Children Act 1989 aims.Judicial review and Civil Procedure Rules 1998, Part 54With the most recent amendments to the Civil Procedure Rules 1998 comes the new Part 54 which deals with judicial review.

Perhaps the most striking new provision is that respondents to an application for permission to proceed must be served with the claim (rule 54.7) and they must, at that stage, set out their grounds if they intend to oppose the claim (rule 54.8); though if they fail to indicate opposition at the application stage they are prevented only from opposing permission (rule 54.9), not the application as a whole.

Trials within trials can be predicted.

The new part has the customary practice direction; but in addition an (as yet) unpublished note for guidance.The levelling of legal language persists: the old orders are replaced by a mandatory, a prohibiting and a quashing order; and injunction is added for good measure.

The court is now called the Administrative Court; though in the initial stages of the new scheme no one seems to have told its staff of this new name.

What was wrong with the Crown Office and an order of certiorari: Shakespeare would have been able to cope with the old language, surely?Summary assessment of costs: a way out for late serviceMacdonald v Taree Holdings Ltd (2000) The Times, 28 December, Neuberger JOne of the more important developments under the Civil Procedure Rules 1998 was the provision for summary assessment set out in rules 43.3 and 44.7(a).

A new practice direction explains provision for summary assessment (Practice Direction about Costs section13).

The new procedure more or less follows the old.

In particular it requires that a schedule of costs for summary assessment is served not less than 24 hours before the date fixed for the hearing (para 13.5(4)) and that failure without reasonable excuse to comply with the provisions of section13 will be taken into account by the court in deciding what order to make about the costs of the application (para 13.6).In practice this has caused difficulties: some district judges have insisted upon strict observance of the practice direction and parties have been deprived of their costs; whereas others have taken a much more relaxed view receiving estimates of costs on the backs of envelopes at the end of hearings etc (anecdotal evidence of the last point available only).

Help, and some clarification, is at hand: in Macdonald v Taree Holdings Ltd, Mr Justice Neuberger held that failure to serve a costs estimate in time need not be fatal to an application for costs.

First the court must consider the prejudice to the paying party and it should do so on the following bases:- l Should there be a short adjournment on the day of the hearing for the paying party to consider the proposed receiving party's quote schedule of costs;l Should there be full detailed assessment with the result that the assessment of the amount of costs would be put back in the usual way; or l Should summary assessment take place on another date.All these means of disposal would give the receiving party their costs; but each might imply a slight reduction in the amount ultimately awarded against the paying party to reflect his or her delay (in terms of para 13.4(4)) in service of the estimate of costs for summary assessment.

Legal aid for contempt proceedingsR v Selby Justices, ex parte Daltry (2000) The Times, 1 December, Elias JLegal aid is available under the Legal Aid Act 1988 section 29(2) for proceedings for contempt in magistrates courts, county courts and superior courts (including the Court of Appeal, the High Court etc).

Legal aid continues to be available under section 29 despite the coming into operation of the Access to Justice Act 1999.

Representation is granted by the court.

In R v Selby Justices, ex parte Daltry, the question arose as to whether it was open to the Court to dismiss a contempt application having heard representation from solicitors and then to refuse legal aid.

If this approach were right then its effect would be that legal aid would not be available prior to the court's decision, and effectively could only be available for a respondent/ defendant on the question of sentence after a finding had been made as to his liability in contempt.

The Divisional Court held that the approach of the clerk to the justices in Selby was wrong.

Contempt was a potentially serious matter, the investigation of which generally required representation; and therefore that representation should be available as near as possible from the outset of the application and not denied if the contempt application was held to be unfounded.