Legal case notes: Re: A (Residence Order) [2007] EWCA Civ 899, CAThe facts

The parents separated when the child was one year old. He lived with his mother until he was eight years old, but had regular contact with his father. The mother continually sought to interfere with and frustrate his contact with his father, and there were several court hearings in an attempt to make contact work. Although the report does not indicate what took place at these hearings, there would have been at least one conciliation hearing (an informal session with a CAFCASS officer to try to get at the root of the problem and reach agreement) and attempts to impose conditions sufficient to satisfy the mother’s anxieties and persuade her to allow regular contact. When the child was eight years old, an independent social worker and an expert psychologist were instructed and they recommended that, although he wished to remain with his mother, he should live with his father because the mother was unable to change her behaviour, which was likely to damage the child emotionally, even though he would find the move traumatic in the short term. The judge not only ordered that the child live with his father, but also refused to grant a stay of his decision. The mother appealed to the Court of Appeal.

The Court of Appeal held that the judge’s decision was correct and dismissed the appeal, but also held that he should have granted a stay of his decision. Where there was a genuine intention to appeal, such a drastic change in a child’s circumstances as a change of residence should not take place until an appellate court has had a chance of considering, as a matter of urgency, whether there are at least reasonable grounds for an appeal and a further stay, as otherwise there is risk that the child might be shuttled between one parent and the other.

The judge should have granted a short stay, in order to give his mother a chance to apply to the Court of Appeal. That having been said, the decision was in the child’s best interests. Section 1 of the Children Act 1989 provides that the court’s paramount consideration is the child’s welfare. The judge had had the relevant features of the case clearly in mind, including the relevant guidelines under S.1 of the act, ie the ascertainable wishes and feelings of the child, the likely effect on him of any change in his circumstances, any harm which he had suffered or was at risk of suffering, and how capable each of his parents was of meeting his needs, and had been right, on all the evidence, to conclude that no amount of good parenting in other respects could lead the child to tolerate a continuation of his mother’s efforts to interfere with his relationship with his father.

The significance of this decision is the court’s recognition of the fact that the mother’s behaviour, however well intentioned it may have been, was capable of harming the child. It is extremely unusual for a court to change a child’s residence because of difficulties over contact, ie to direct that a child shall leave one parent and go to live with the other simply because one of the parents is sabotaging contact arrangements. These sort of intractable difficulties over contact are, sadly, very common, and judges fall over backwards in their efforts to make contact work, before considering a course of last resort.

Sometimes the difficulties are caused by the mother’s anxiety, which may or may not be reasonable, eg over the father’s drinking, or drug taking, or his new girlfriend or partner, but often they are irrational, arising out of no more than a desire to punish or wound the father for real or imagined wrongs during the marriage. Nevertheless, the court has to consider what is best for the child in the long term. The writer, in common with all family court judges, will not even consider changing a child’s residence, when the parent with whom he lives is a good parent in every other respect, until every alternative approach has been tried. The court will begin with conciliation, and then, if that is unsuccessful, move on to imposing various conditions, eg that the father is not to drink in the child’s presence, or that he is to provide the result of hair strand tests to show that he is drug free, or that that the child is not to come into contact with his girlfriend or partner, and then, if these fail, order that contact be supervised by an acceptable third party – which often allays the fears and suspicions of the parent with whom the child lives – before resorting to contact at a Contact Centre. Finally, the court will put a penal notice on the order, ie a notice that if the primary carer does not comply with the contact order, he or she will be in contempt of court and likely to go to prison, but there is no point in this unless the court is prepared to impose a sentence of imprisonment on the disobedient parent – even if it is suspended – and this often does no more than make the disobedient parent more determined than ever not to give way. In the present case at least some of these steps must have been tried (it is not clear from the report exactly what steps had actually been tried), until the court was left with no alternative but to take the child away from his mother, who seems to have been otherwise a good parent.

Michael Segal has been a district judge of the Principal Registry of the Family Division since 1985. This is a specialist family court and about two-thirds of its work concerns disputes about children.

The cases presented here aim to help the reader understand better the nature of and the types of decision-making within the court system.