Transfer of residence should not be seen as a “last resort”

Private Law (Child Arrangements Programme (CAP))

05 November 2019

In my article written in April 2018 “Not “Parental Alienation”? but heading towards intractability? What can be done I discussed some of the challenges facing the courts where adult conflict threatens to harm the relationship between children and their parents.

Two cases decided in 2019 consider further the question of transfer of residence in cases where a child is found to be suffering harm as a result of one parent’s fixed view of the other.

Case 1. Which harm would be the greater for a child? A move, or continued exposure to negativity towards the father?

Re L (A Child) [2019] EWHC 867 (Fam).

The child involved in this case (L) was eight years old by the time a final order was made. Proceedings had been initiated some six years earlier and no fewer than 12 Orders had been made by 10 different judges.

L had lived with the mother and maternal grandmother in London since the age of two, and there had been various Orders for contact between L and the father, who lived in Northern Ireland.

In October 2017 allegations which “if true, indicated a lack of sufficient sexual boundaries in the father’s home” were investigated by the police and were then the subject of a fact-finding hearing – at which they were dismissed. The father then applied to change residence on the basis that the mother and maternal grandmother were undermining the child’s relationship with him.

A Guardian was appointed, whose initial view was that a change of primary home would be too damaging at that time, but that the mother and maternal grandmother must accept that the child was safe in the father’s care. If they were unable to do so then a change of residence may need to be considered.

CAFCASS officers previously involved had warned of the emotional pressure on L and the Guardian considered that L was being emotionally harmed by the conflict between the parents to the extent that it now constituted “emotional abuse”. The Guardian changed her recommendation at the hearing, after the oral evidence of the father, mother and maternal grandmother, to a recommendation for a transfer of residence.

HHJ Toulson did not make findings of “parental alienation” but did find that the mother and grandmother had not allowed the child emotional space to express positive feelings about the father and had in fact, provided him with emotional reward for expressing negative views.

HHJ Toulson concluded that maintaining a placement with the mother and maternal grandmother would not meet L’s future emotional needs, and that the harm that would inevitably follow a move from London to Northern Ireland was harm “worth incurring” given the absence of substantial change by the mother and maternal grandmother.

The mother appealed but her appeal was dismissed. The President of the Family Division said of the Re: A (Residence Order) [2009] EWCA Civ 1141 test (at paragraph 59)

“Having considered the authorities to which I have referred, and others, there is, in my view, a danger in placing too much emphasis on the phrase “last resort” used by Thorpe LJ and Coleridge J in Re: A. It is well established that the court cannot put a gloss on to the paramountcy principle in CA 1989, s1. I do not read the judgments in Re: A as purporting to do that. The test is, and must always be, based on a comprehensive analysis of the child’s welfare and a determination of where the welfare balance points in terms of outcome. It is important to note that the welfare provisions in CA 1989, s1 are precisely the same provisions as those applying in public law children cases where a local authority may seek the court’s authorisation to remove a child from parental care either to place them with another relative or in alternative care arrangements. Where, in private law proceedings, the choice, as here, is between care by one parent and care by another parent against whom there are no significant findings, one might anticipate that the threshold triggering a change of residence would, if anything, be lower than that justifying the permanent removal of a child from a family into foster care. Use of phrases such as “last resort” or “draconian” cannot and should not indicate a different or enhanced welfare test. What is required is for the judge to consider all the circumstances in the case that are relevant to the issue of welfare, consider those elements in the s1 (3) welfare check list which apply on the facts of the case and then, taking all those matters into account, determine which of the various options best meets the child’s welfare needs.”

 The mother’s criticism of the Guardian for not having expressly spoken to L about his wishes and feelings in relation to with which parent and in which country he would like to live was likewise not accepted by the Appeal Court. The duty of the Guardian to report on the child’s wishes had to be tempered “…by the overarching requirement to afford paramount consideration to the child’s welfare.”

In this instance the Guardian considered that any expression of wishes would be bound to favour the mother and that to ask the question and put L in the position of having to express a choice would, in itself, be emotionally harmful.

Case 2: With alienation resulting in emotional harm, a transfer of residence might be the only way to ensure a child’s relationship with both parents.

Re H (Parental Alienation) [2019] EWHC 2723 (Fam), a case that followed and referred to Re L, is a case in which Keehan J ordered a change of residence as the only realistic option to meet the child’s welfare best interests in a case where there had been parental alienation. The child (H) lived with his mother and there had been almost continuous court proceedings since the separation of the parties. The Mother had raised allegations of domestic abuse against the father on a number of occasions but these allegations had all been dismissed.

H had enjoyed good quality contact until March 2018, at which time direct contact ceased. It appeared that H had either been told by his mother about, or had been allowed to read, an “inappropriate and intemperate” email sent by his father to his mother.

A psychologist, Dr Braier, assessed both parents and H. Her evidence was that H’s lack of ambivalence towards his father made his presentation more likely to be alienation than estrangement resulting from his father’s behaviour, and that H was emotionally harmed. The Mother’s views were entrenched and therapeutic intervention aimed at restoring H’s relationship with his father whilst in the care of his mother would be ill-advised.

Although a s37 report had been completed by a social worker and the Court also heard from a NYAS caseworker the Judge found the s37 report to be “woefully inadequate” and took no account of it. The NYAS caseworker was criticised by the Court as her report contained serious omissions and deficits, in particular her acceptance of H’s expressed wishes and feelings at face value.

Keehan J found the following: that the Mother had alienated H from his father, that the absence of father from H’s life had and would continue to cause H emotional and social harm, and that the only means by which H would be able to enjoy a relationship with both parents was to transfer residence to the father.

Both of these cases move away from the notion that a transfer of residence should only be considered as a “last resort” and only in cases where findings of “intractable hostility” or “parental alienation” have been made. On reading the authorities, practitioners are reminded of the difficult nature of proceedings involving this type of situation.

Whilst a Court might consider making a suspended order to allow a parent further time to demonstrate a capacity to change, allow a parent to access therapeutic work or even consider whether a s37 report would enable the provision of services, surely the most effective solution is to ensure that parents do not find themselves in this situation to begin with.

As highlighted in my earlier article, identification at an early stage of the possibility of the couple attending a Separated Parents Information Programme [SPIP], or mediation or “co-parent coaching” may ensure that neither the children nor the adults themselves experience the conflict that can accompany the end of a relationship.


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