Transferring a child from one parent to the other by John Bolch

Children|February 20th 2014

In the recent case of RS v SS, which I discussed in this post, the judge took the unusual step of ordering a transfer of residence from one parent to the other – in that case from the mother to the father. Such a decision, of course, raises the issue of how the physical transfer of the child is to be achieved.

As one might expect, it is an issue that can be fraught with difficulties, especially where the parent ‘losing’ residence does not cooperate with the court. In RS v SS the mother failed to comply with the judge’s order for her to take the children to the paternal grandparents, where they were to be collected by the father.

The transfer did take place the next day, which unfortunately was Christmas Day.

However, things can be much more complicated. The most difficult case concerning a transfer of residence that I can recall took place in early 2010, and caused quite a stir at the time, amongst both the media and family lawyers.

The case involved an application by a father for a residence order in respect of his son, who was then nearly twelve years old. The father had last had direct contact with the boy in February 2006. All efforts to re-start direct contact had failed, due to the child’s refusal to engage. The boy appeared to have been turned against the father by his mother, calling his father a ‘monster’, and threatening to go on hunger strike if he was made to live with him.

The case came before His Honour Judge Clifford Bellamy in the High Court. On the 4th of January 2010 he held that, traumatic though it may be in the short term, it was in the best interests of the child’s long-term welfare for him to live with his father. He therefore ordered that the child should be transferred to the father on the 7th of January.

The mother sought permission to appeal against the decision and Judge Bellamy’s order was stayed pending the hearing of her application. That hearing took place on the 21st of January, when her application was refused by the Court of Appeal.

The Court of Appeal sent the case back to Judge Bellamy, for him to deal with the handover arrangements. After considering the matter very carefully in a 135 paragraph judgment, he made an order for the mother to take the boy to the father, with the proviso that if she failed to do so then the ‘Tipstaff’ (a court official) would take the boy the next day. The boy himself had described the use of the Tipstaff as ‘barbaric’, saying he was being treated like ‘a criminal’.

The mother appealed against the handover order.

The Court of Appeal allowed her appeal and made an order whereby there should be a ‘stepping stone’ of a foster placement between the boy living with his mother and him living with his father. So, instead of going straight to his father, it was decided that he would stay temporarily with foster carers for 21 days, during which time he would have “prolonged” contact with his father. At the end of the 21 day period the transfer to the father would be completed “come what may”.

As I said at the beginning, giving effect to a transfer of residence can be fraught with difficulties. However, this case demonstrated both the care with which the courts consider such matters and the lengths to which they are prepared to go to, to do what they consider best for a child.

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

Comments(3)

  1. Marilyn Stowe says:

    John I think this litigation didn’t end there, see http://www.bailii.org/ew/cases/EWHC/Fam/2010/B19.html
    Regards
    Marilyn

  2. Paul says:

    This was a seminal case. It was later acknowledged in the final, final judgement (where the father disastrously loses out) that alienation can now be considered a mainstream feature of UK family law.

    What is important to remember about this case was that the Expert, Doctor W, predicated that the softly softly “stepping stones” approach to effect the transfer of residency, proposed by a social worker against his advice, would not work. He said the boy should be picked up, plonked with his father and the two of them allowed to get on with it, for better or worse.

    But no, the court allowed itself to get sidetracked and persuaded by arguments from people who don’t properly understand the phenomenon of alienation and how sometimes it has to be dealt with in brusque, definitive fashion. The transfer got fudged and the stepping stones approach went wrong so disastrously that the court reversed its final decision to transfer residency to the father and allowed the boy to remain with a parent who had caused “significant harm”, the threshold for public law intervention.
    When you are dealing with an unreconstructed recalcitrant, the only method that works is to get on with it and effect the transfer immediately.

  3. Winston Smith says:

    Unfortunately the recent case appears not to have ended there leaving the female judge looking very foolish and questions having to be asked about her competence. We do not know what went on behind the scenes.

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