Re L (A Child) [2019] EWHC 867 (Fam) Family Division, 8 April 2019, Sir Andrew McFarlane P

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Following the parents’ separation, the child lived with the mother and maternal grandmother. The father lived with a new partner in Northern Ireland. From 2013 onwards, the child was the subject of litigation in the Family Court, on the mother’s application. In May 2016, a final order was made by consent, confirming that the child would live with the mother and spend every third weekend with the father in England plus substantial periods with the father in Northern Ireland during the school holidays. Reports written by various Cafcass officers over the years raised concerns about the mother’s unwillingness to promote contact with the father.

In October 2017, the child, then 8 years old, gave an ABE interview to the local police, making assertions which, if true, indicated a lack of sufficient sexual boundaries in the father’s home. The father applied for a change of residence, submitting that his relationship with the child was being undermined by the mother and grandmother. In May 2018, the judge found “to a very high standard of proof that there has been no sexual or physical abuse by [the] father of his son”. The judge adjourned the father’s change of residence application, on the basis that he had grave concerns about the situation but that it would wrong to reach any final conclusion without further evidence. He observed that the question was how the mother and grandmother were going to react to the court’s findings and whether there would be any more of the “dreadful past history of litigation”.

After interviewing the child and the mother separately and, on a different day, the child and the father together, the guardian prepared a report, delivered 10 working days before the second hearing. The report identified a striking contrast between the child’s comments about the father when in the presence of the mother (entirely negative) and the reality of the child’s relationship with the father, stating that when the child was in the presence of the father he presented as a very happy, excited and joyous child. The guardian had not directly asked the child about the proposal that he move to live with the father in Northern Ireland, taking the view that it would be harmful to the child to do so.

Nonetheless, on the basis that there would be various pressures on the child if he were to move to Northern Ireland, she recommended that the child remain with the mother. However, the report was clear that the child was safe in the father’s care and stated that, if, at the hearing, the mother was unable to accept that this was true, the guardian would be inclined to consider a change of residence. In the guardian’s view, the child was being emotionally harmed by the parental conflict; she described this as ‘emotional abuse’.

Before the next hearing, in November, there was incident at the airport in which the mother withheld the child’s passport from the father until the police were called. At the hearing the mother said that she was willing to take advice and had enrolled on a parenting course; the grandmother said that she and the mother needed to change their approach. Notwithstanding this, at the conclusion of the oral evidence, the guardian announced that she had changed her mind and was now recommending that the child moving to live with the father in Northern Ireland. The mother was given an opportunity to cross-examine the guardian about her change of mind, but her application for an adjournment was rejected.

The judge did not make findings of “intractable hostility” or “parental alienation” but found that the mother and grandmother did not allow the child emotional space to express positive feelings about the father and, in contrast, provided him with emotional reward for expressing negative views. In the judge’s view the mother and grandmother’s attitude and approach had not significantly changed since the time of his earlier judgment, save for some movement following receipt of the guardian’s report a few days before the hearing. The judge concluded that the child’s approach to the father would not change while the child remained in the care of the mother and grandmother. Describing himself as satisfied with the circumstances in the father’s home, the judge went on to conduct an analysis in terms of the welfare check list in s 1 of the Children Act 1989. The judge decided that the inevitable emotional harm that would follow a move to Northern Ireland was “harm which is worth incurring”, given the absence of substantial change by the mother and grandmother and that the balance of advantage lay in a move to Northern Ireland.

The mother indicated an intention to appeal and the judge’s order was stayed. The mother argued that: there had been a failure to ascertain the child’s wishes and feelings concerning who he was to live with and in which country; the decision to transfer residence had been premature (relying on Re A (Residence Order) [2009] EWCA Civ 1141); the judge’s conclusions in respect of the balance of harm were wrong or insufficiently evidenced; and that there had been procedural deficiencies, in particular relating to the guardian’s change of recommendation.

The President dismissed the mother’s appeal; arrangements were to be made for the child to move to Northern Ireland.

The language used in Re A (Residence Order) [2009] EWCA Civ 1141, insofar as it referred to a decision to change the residence of a child as “a weapon” or “a tool”, risked moving the focus of the decision-making away from the welfare of the child, which must be the court’s paramount consideration. In Re A, in contrast to this case, the risks to the child of changing residence had not been seen as outweighing the detriment to the child’s welfare arising from the mother’s difficulty in complying with contact arrangements, and there had been no finding that the child was suffering emotional harm in the maternal household. Reviewing the other authorities, including Re C (Residence) [2007] EWHC 2312 (Fam) and Re M (Contact) [2012] EWHC 1948 (Fam), there was a danger in placing too much emphasis on the phrase “last resort” used in Re A. It was well established that the court could not put a gloss on to the paramountcy principle in s 1 of the Children Act 1989. The test was, and must always be, based on a comprehensive analysis of the child’s welfare and a determination of where the welfare balance pointed in terms of outcome. The welfare provisions in s 1 were precisely the same provisions as those applying in public law children cases. Where, in private law proceedings, the choice, was between care by one parent and care by another parent against whom there were 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” could not and should not indicate a different or enhanced welfare test. What was required was for the judge to consider all the circumstances in the case that were relevant to the issue of welfare, consider those elements in the s 1(3) welfare check list which applied on the facts of the case and then, taking all those matters into account, determine which of the various options best met the child’s welfare needs.

Section 1(4)(a) of the Children Act 1989 required the court to have regard to the “ascertainable wishes and feelings of the child . . .” Whilst it was a fundamental principle, applicable to every case, that the child who was the subject of the proceedings was to be heard, the manner and the degree to which the child was heard would vary from case to case. Further, it was important to bear in mind that each element in the welfare checklist, and also, in the court’s view, the guardian’s express duty under FPR 2010 to report on the child’s wishes, was subject to the overarching requirement in s 1(1) of the 1989 Act that the welfare of the child must be the court’s paramount consideration.

The child had been represented by a professional Cafcass guardian, a solicitor, and experienced counsel. To that extent, the voice of those acting on the child’s behalf had certainly been “heard” within the proceedings. In the professional opinion of the guardian, it had not been possible to “ascertain” the child’s wishes and feelings on the central issue without causing him emotional harm. She had also taken the view that any expression of wishes by the child would be unlikely to represent his true wishes and feelings and that, to that extent, it would not be possible to “ascertain” the child’s genuine view. The guardian’s observation of this heavily conflicted young boy, who had a good relationship with both of his parents yet could speak only negatively of his father when in the care of his mother and maternal grandmother, spoke volumes and, as the judgment demonstrated, his voice, in that regard, had been heard loud and clear by the judge.

If contemplation of the need for change in the maternal home was limited: a) to the present application; b) to the period of 10 working days following receipt of the Cafcass report; and c) to the mother alone, then the mother had been given only a limited time to change and the decision might be seen as premature. However, concern about the impact on the child of being a child at the centre of parental conflict had in fact been identified as long ago as 2013; this was not a new concern generated for the first time in the father’s recent change of residence application. Further, the judge could not have been more explicit in delivering a wake-up call to the mother and the grandmother in his May judgment. Also, whilst it was correct that any parental conflict required more than one participant, the judge’s findings made it plain that he regarded the actions of the mother, and more particularly the grandmother, to be the principal source of conflict and the principal cause of harm to the child. Moreover, it was wholly artificial to challenge the welfare balance undertaken by the judge in a manner that excluded consideration of the grandmother’s role. For the judge, the personality and role of the maternal grandmother in the child’s life had been, if anything, more significant in terms of emotional harm to the child than that of the mother. The judge had been entitled to rely upon the incident at the airport in support of his wider finding that, in reality, nothing had or would change in emotional terms for the child if he were to remain living in the maternal household.

In terms of the welfare balance, in circumstances where the two households on offer were broadly similar, with each meeting the child’s needs, the case turned on one issue, namely that of emotional harm. The judge had concluded that the level of emotional harm and the potential for future harm were such that, in the absence of any clear indicator of change, a move of home was justified. It might be that the decision to move the child was finely balanced, but it was not possible to say that the judge had been “wrong” in fixing the balance as he had in this case.

Finally, the mother’s complaints about process were insufficient to amount to a finding that the process had been so flawed as to establish a breach of the right to a fair trial. The change in the guardian’s recommendation at the close of the lay parties’ oral evidence had undoubtedly placed the mother’s team in an unwelcome and difficult professional position. However, there was no real ground for criticising the trial process, or for challenging the judge’s decision to refuse the adjournment application made at the end of the hearing.