Child arrangements orders usually last until the child reaches the age of sixteen. However, in exceptional cases the court can make an order beyond that age. The question, then, is what constitutes ‘exceptional’? A recent decision of the High Court of Justice in Northern Ireland throws a little light on this.
In Fergus v Marcail the mother was seeking the extension of a residence order until her son reaches the age of eighteen. The relevant provision relating to the application was Article 9(6) of the Children (Northern Ireland) Order 1995, which is effectively in identical wording to the relevant provision in this country, section 9(7) of the Children Act 1989. Section 9(7) reads:
“No court shall make any section 8 order, other than one varying or discharging such an order, with respect to a child who has reached the age of sixteen unless it is satisfied that the circumstances of the case are exceptional.”
A section 8 order is a child arrangements order (which replaced the previous residence and contact orders), a prohibited steps order (an order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court) or a specific issue order (an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child).
The mother claimed that the circumstances in this case were exceptional on the following grounds:
1) The child and his two sisters had been the subject of care proceedings in 2010. In a fact-finding judgment in those proceedings the judge found that the father:
“…is a domineering individual both physically and mentally. Physically through his size and presence … mentally through his intelligence, his manipulation, his use of the pressure of uninterrupted speech … I consider that [his] overriding objectives are to exclude [the mother] from the lives of all three children and to have them in his sole care.”
The judge also found that the father “had negatively influenced all three children against their mother”.
2) The mother’s barrister submitted that the case was exceptional, as it was one of the clearest cases of parental alienation, as evidenced by the above findings made about the father, in particular his ability to manipulate the children, and as evidenced by the fact that the court had previously made an order that the father should have no contact.
3) Other grounds included the child’s expressed wishes and feelings, his inability to assert himself against his father’s wishes and therefore his felt need for the protection of the residence order, the risk of harm (in the light of the father’s manipulation) if the residence order ended when he was 16, and concern that the father may abduct him and take him out of the jurisdiction.
The father argued that the case was not exceptional, essentially denying all of the above.
Perhaps crucially the Official Solicitor, acting on behalf of the boy, submitted that he was a vulnerable young man who indicated that he required assurance that his primary residence would not change.
The case was heard by Madam Justice McBride, who made the following findings:
1) The concept of “exceptional circumstances” was not defined. She therefore found “that its ordinary meaning applies and therefore exceptional circumstances refer to a case which is unusual or deviates from the norm.”
2) This was an exceptional case, for the following reasons:
(i) The parties had already agreed an order for indirect contact between the father and the child, and that that order should last until the child’s eighteenth birthday, therefore all must have agreed to this on the basis that this was an exceptional case. Contact and residence in the case were closely interlinked and therefore exceptionality was established in respect of the making of the residence order, for the same reasons as it was required for the contact order.
(ii) This was a case with a long history of fractured relationships, as the boy was aware. The circumstances relating to the family were exceptional, as demonstrated by the making of a ‘no contact’ order. Further the boy’s perception and strongly held belief was that his father is a forceful, assertive and domineering individual who has the capacity to undermine his placement with his mother (he had informed the Official Solicitor that he was conscious of his own limitations in asserting himself against the will of his father, and he indicated that he would not be comfortable in challenging his father).
(iii) The reports of the Official Solicitor and Social Worker all painted a picture of a vulnerable young man who feels “ill-equipped to deal with the stressed created by challenging his father”. In this “David and Goliath” type scenario the boy needed the protection of a residence order, to address the power imbalance. With such an order in place he would have the security of knowing his primary placement will not change no matter what pressure is brought to bear upon him by his father.
(iv) The boy, who is now aged 15, was mindful of the protection that would be afforded by extending the order until he was an adult, and clearly expressed the wish to have the order extended.
Further to the above Madam Justice McBride found “that it is in [the boy’s] best interest to reside with his mother until he is 18 and that the Residence Order should be extended until he is 18 so that these living arrangements are settled”, that: “this is necessary to create the security he needs to ensure his physical emotional and educational needs are met”, and that: “it will establish the best foundation upon which he can build a future relationship with his father.” Lastly, she found that if the residence order was to end when he is aged 16, it was highly likely he would be at risk of suffering emotional and physical harm and that his education would be adversely affected. If the order was not extended he would feel vulnerable and he had indicated that he would be unable to cope with any pressure his father would place upon him. He had already expressed to the professionals that he did not at this time feel well enough armed to deal with the pressures and challenges his father’s behaviour might bring.
Accordingly, the residence order was extended until the boy’s eighteenth birthday.
You can read the full report of Fergus v Marcail here.