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Dealing with an intractable children dispute, Part 2

Following on from my post yesterday, I now turn to the second Court of Appeal decision from early April concerning an intractable children dispute: L (A Child), which concerned an appeal by a mother against an order transferring the home of the child from that of mother and maternal grandmother in London, to that of father and the father’s new partner in Northern Ireland.

The appeal was heard by the President of the Family Division Sir Andrew McFarlane. As he explained in the first paragraph of his judgment, the appeal concerned the approach to be taken in a case which, on the judge’s finding, falls short of attracting the labels “intractable hostility” or “parental alienation” (but nevertheless could certainly be described as an “intractable dispute”).

The facts of the case were that the parents separated some six years ago, when the child was two years old. He went to live with the mother and maternal grandmother, and he had had his main home with them since that time. In words sadly very similar to those of Lord Justice Jackson in yesterday’s case, the President explained that the child has been the subject of litigation in the Family Court since 2013.

In 2016 the court made an order by consent that the child should live with his mother, but providing for regular time with his father every third weekend in England, and for substantial periods in Northern Ireland during the school holidays.

In 2017 the child gave an interview to the local police in which he made assertions which, if true, indicated a lack of sufficient sexual boundaries in the father’s home. The matter was investigated by the court and in May 2018 His Honour Judge Tolson QC dismissed the allegations upon which the mother relied and found “to a very high standard of proof” that there had been no sexual or physical abuse by the father of his son. The child had been put up to say things to the police. The allegations, however, tainted all that followed.

The father applied for a change of residence. The application was heard by HHJ Tolson, who handed down judgment on the 3rd of December last. He noted various matters, including that Cafcass officers had outlined similar concerns since the litigation began. For example, a Cafcass officer had reported in July 2017 that they had significant concerns that the child was “caught up in a very acrimonious dispute between his parents and that inevitably he must be picking up on this.” Six months later another Cafcass officer reported that the child “described his mother entirely positively and his father entirely negatively.” Yet another Cafcass officer said that the child “was being emotionally harmed from the parental conflict”. Judge Tolson found that the mother and maternal grandmother had influenced the child against his father albeit, as indicated above, not to the degree that could be labelled “parental alienation”. He held that maintaining the placement with his mother and grandmother would not meet the child’s emotional needs and would cause him emotional harm in the future. He therefore concluded that the balance of advantage lay in a move to Northern Ireland.

The mother appealed to the Court of Appeal, arguing that the decision to transfer residence was premature, that the court had failed to ascertain the child’s wishes and feelings, and that the judge’s conclusions in respect of the balance of harm (i.e. between staying with the mother or moving to live with the father) were arguably wrong or insufficiently evidenced.

Before dealing with these three arguments the President made an important point. It has often been said that a transfer of residence is a “weapon of last resort” for the court to use when the primary carer is frustrating the wishes of the court. The President said that there was a danger in placing too much emphasis on the phrase “last resort”. He said 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. Use of phrases such as “last resort” cannot and should not indicate a different or enhanced welfare test.

As to the child’s wishes and feelings, the President found that, in the circumstances of the case, the child’s Guardian had made the decision that to ask the question and to put this eight year old boy on the spot of expressing a choice would itself be emotionally harmful. Nevertheless, the Guardian had ensured that his voice had been heard “loud and clear” by the judge.

As to the arguments regarding balance of harm and prematurity of the decision, the President said that it may have been that the decision to move the child was finely balanced, but, as is well known, finely balanced welfare decisions are not susceptible to a successful appeal. It was not possible to say that the Judge was “wrong” in fixing the balance as he did in this case. The decision was not premature, as concern about the impact on the child of being at the centre of parental conflict was identified as long ago as 2013.

In short, the mother’s arguments had not been sustained. Accordingly, her appeal would be dismissed.

As I indicated at the beginning of my post yesterday, I believe that this case has useful things to say about intractable disputes between parents over arrangements for their children. It shows that the failure of a parent to address the court’s concerns can tip the balance in favour of a change of residence. And in particular it demonstrates once more that parental conflict must be cast aside, and the welfare of the child put first.

You can read the full judgment here.

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, with his content now supporting our divorce lawyers and child custody lawyers

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