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Reversal of Residence Case Law

Reversal of Residence Case Law

While Residence and Contact Orders were replaced by the single Child Arrangements Order in April 2014, within that single order, the court can determine the parent with whom a child lives, decide that the child lives with both parents, albeit in different homes, or lives with one and has contact with the other.

Where one parent’s behaviour causes harm to the child, either by way of neglect, abuse or failing to support (or actually sabotaging) the child’s relationships with the other parent (or in some case grandparents), the option exists to make changes to the decision regarding the person with whom the child lives to secure the child´s welfare.

Judgments included in this section relate to cases where the court has reached this decision. A further option is to suspend the order, as a final warning to the parents to change their ways.

Where in the public domain, full versions of the judgment can be read onscreen or downloaded in a PDF format for printing via link buttons.

Mrs Justice Bracewell discussed at paragraph 10 the (then) lack of powers available to the court to address intractable contact disputes (prior to the Children and Adoption Act 2006 introducing new ´contact activity directions´ and ´enforcement powers´). She points out that indirect contact is the worst of options in addressing intractable cases (and in this case, there being parental alienation and substantial false allegations as a factor).

The judge transferred residence to the father.

https://www.bailii.org/ew/cases/EWHC/Fam/2004/1215.html

The report was to the effect that the mother suffered a personality disorder which rendered her incapable of controlling her emotions when confronted, directly or indirectly, by the father on occasions of contact; that, albeit that he, Dr Anderson, understood that S had not yet been harmed by the level of conflict generated by the mother, such would not remain the case; and that the continued parental alienation likely to be visited by the mother upon him and the attendant emotional pressure upon him would lead to significant psychological difficulties for him.

The mother persistently interfered with contact arrangements including breaches of an interim order, and it was the opinion of the independent social worker that the child must live with the father.

“21. Mr Wall complains that the recorder failed to pay sufficient regard to the likelihood of continued difficulty in relation to handovers even following a change of residence. I have pointed out that the recorder accepted the likelihood of that continued feature but drew the distinction, in my view valid, that at least in the father’s household S would not be exposed to a continual atmosphere of hostility towards the non-residential parent…
29. This case affords another vivid illustration of the inability of a court, in any jurisdiction, to protect children from all the consequences of the way their parents choose to behave. Where criticism of parenting is exclusively referable to issues of contact a transfer of residence will, of course, always remain the exceptional response, but there must be times when the court is able and seen to be willing to carry through a transfer of residence when all else has failed.
30. This case is distinguished by the degree of judicial continuity which was available to the parties. It is apparent by looking at the learned recorder’s involvement in this case, that he has repeatedly made findings as to the frustration of contact: he issued the clearest of warnings; he was in receipt of compelling professional evidence suggesting that the mother lacked insight or the capacity to change and, of course, he had the impact of that video. In my judgment, its importance matters rather less as to what one precisely makes of it but as providing a vivid illustration of the mother’s lack of insight, or ability to change, when it is appreciated it is in the context of the judge having given the clearest possible warning that he would consider a change of residence were the difficulties not to abate.
31. In my judgment, the learned judge was fully entitled to follow what, admittedly, was a dramatic course; it was one that will bring real if transitory cost to the child but one in which, in my judgment, he was fully entitled to carry through. There was simply no real alternative and, had the judge not made the order that he had made, in effect, the court would be giving up on this family and allowing the mother to behave in whatever way she chose.”

“a crucial measure of a resident parents ´good enough´ parenting is whether they promote frequent and continuous contact with the non resident parent.” – Dr Cameron

A complex case where residence was transferred to the paternal grandparents. The father had been found guilty of sexually abusing his step-daughter. The father maintained his innocence. The mother of the father´s two other children became obsessively opposed to contact between the two sons and the paternal family.

So what the judge had to balance was on the one hand the enormous harm, real genuine psychological harm which these children would suffer if they continued to grow up in a false belief system, against the love which their mother undoubtedly bore them and the fact that they had lived with her for all their lives. The judge went about that task in my view conscientiously. He made it absolutely clear that the welfare of the children was his first and paramount consideration. Everything else had to pale into insignificance…

The idea that these children should regard their grandparents as effectively ogres who are likely to facilitate and connive them being abused by their father is fanciful and absurd and I do not give it credence for one moment; nor, plainly, did the judge because the judge trusted the grandparents. And so, as I say, when the judge came to strike the balance between, on the one hand, an abusive false belief system inculcated by the mother, and the possibility that against that, on the other side, free from her false belief systems, the children might be able to regain at least a fraction of their childhood and be normal children again enjoying a normal relationship with grandparents, the judge’s balance in my view comes down only one way and certainly I cannot say on any view that he was plainly wrong. I do not underestimate the short term distress which the children may feel but I ask their parents to think very carefully about why they are feeling that distress, and if their parents are honest people they will recognise, and their mother in particular will recognise, that they are feeling it because she feels it and she has inflicted on these children a belief system which, in the words of the consultant psychiatrist, might well involve them becoming emotional cripples.

The judge finds that the mother has caused emotional harm to the child by virtue of her frustrating contact and seeking to alienate the child from the father; he finds that the father is capable of providing care; he finds that the prospects for contact between the child and father are remote if residence remains with the mother.

While acknowledging that a change of residence will be traumatic for the child, the judge transfers residence, mindful of the long term psychological harm that the child may suffer if denied the relationship with the father.

A successful appeal against the decision that the mother hand the child to the father to effect a transfer of residence, or face officers of the court removing the child from her. The judge was wrong to reject the local authority´s recommendation that the child be placed in temporary foster care to assist the transfer of residence.

The child was placed in temporary care, and later the care order discharged with the child moving to live with their father. The discharge of the care order was in the brief judgment given in S (A Child) [2010] EWCA Civ 569.

The resident parent’s obligation (in this case the father) was to “allow” and make the child “available” for contact. This was the father’s obligation under the contact order “no more and no less”. There exists a defence of impossibility. Within the judgment, it was also noted that committal to prison remains an essential power of the court. The judgment includes opinion as to when committal can be appropriate for breach of contact and contempt of court.

The text of the judgment also highlights the possible use of suspended residence orders as a tool to encourage contact (paragraph 107):

“this court has endorsed the propriety in an appropriate case of making a suspended residence order, that is, an order providing for a future transfer of residence upon the happening (or non-happening) of a defined event: see Re A (Suspended Residence Order) [2009] EWHC 1576 (Fam), [2010] 1 FLR 1679 (appeal dismissed Re D (Children) [2009] EWCA Civ 1551), and Re D (Children) xxx (appeal dismissed Re D (Children) [2010] EWCA Civ 496).”

The children were being alienated against the father and paternal family. The mother had broken orders, and contact resumed under warning of committal to prison. The guardian only recommended infrequent contact. The judge found the guardian´s reasoning to be fundamentally flawed in that she confused the children´s wishes and feelings with their welfare needs and had taken them at face value. She had failed to adequately consider the impact of estrangement:

The judge gave one last chance to the mother, by way of a conditional residence order with residence transferring to the father should the mother interfere with contact between the children and him. The children´s passports were to be retained by court tipstaff and certain other restrictions were placed on matters related to parental responsibility.

Residence was reversed in favour of the father. The mother´s counter offer of a suspension of residence was rejected.

Shared residence order discharged and replaced with sole residence in favour of the father. Repeat allegations made by the mother against the father and uncle were untrue. The mother had told the child that the reason for the cessation of contact was that the father was too busy. The court paid regard to the impact on the child of the mother´s comments about the father.

In this case, the court had acknowledged that it was the mother´s intractable and unreasonable position which was the bar to contact, but felt helpless to intervene. The case came after years of returns to court. An important judgment, where the trial judge had made an order allowing only indirect contact for the father, restricted to Christmas and his daughter’s birthday. This was an intractable contact dispute, caused by the mother’s hostility to contact. While not an alienation case per se (albiet the child is clearly torn between her own wish for contact and loyalty to the mother and her opposition), McFarlane LJ upheld the approach taken in Re S (Transfer of Residence) [2010] EWHC 192 (Fam) that while noting the importance of a child’s wishes and feelings, the court must consider too whether those wishes and feelings are rational and reasonable.

MacFarlane endorses Munby LJ’s guidance in Re L-W (Children) [2010] EWCA Civ 1253 that there needs to be judicial continuity, judicial case management including effective timetabling, a judicially set strategy for the case; and consistency of judicial approach. He goes further in paragraph 60:

´If, as part of that strategy, the court makes an express order requiring the parent with care to comply with contact arrangements, and that order is breached then, as part of a consistent strategy, the judge must, in the absence of good reason for any failure, support the order that he or she has made by considering enforcement, either under the enforcement provisions in CA 1989, ss 11J-11N or by contempt proceedings. To do otherwise would be to abandon the strategy for the case with the risk that a situation similar to that which has occurred in the present case may develop; to do otherwise is also inconsistent with the rule of law.´

The father’s appeal was successful. While the outcomes recommended by the trial judge were not necessarily in themselves wrong, the systemic failures over a period of years did amount to a breach of the child´s and father´s right to family life under the Equalities and Human Rights Act and MacFarlane suggested the involvement of a multi-disciplinary team to progress matters. The matter was moved to the High Court for the father´s application for contact to be reheard.

Appeal denied. Lady Justice Parker had reversed residence following the mother´s manipulation of the children in opposition to contact.

Regarding wishes and feelings, the Lady Justice Parker makes the following, useful observations:

“72. The social worker, JW, who is warm, caring and committed, urges me to leave the children living with the mother because that is what they say they want. Until I enforced contact she was also saying that there should be no contact, because that is what the boys say they want. The proof of that pudding has been very much in the eating, on present showing. I have more than once stressed in this case, as in others, that the word used in the Children Act about wishes and feelings is “ascertainable” and not “expressed”. “Ascertainable” often means that the Court has to look at actions rather than words. The ascertainable wishes and feelings of these boys have been demonstrated by the evidence that they are more than happy to be with their father. I suspect they may feel some relief being out of the maelstrom. Their grandmother is calm and robust.”
Regarding the social worker and children´s guardian opposing a reversal of residence at that time, the judge makes further useful and intelligent points:

“74. I regard parental manipulation of children, of which I distressingly see an enormous amount, as exceptionally harmful. It distorts the relationship of the child not only with the parent but with the outside world. Children who are suborned into flouting court orders are given extremely damaging messages about the extent to which authority can be disregarded and given the impression that compliance with adult expectations is optional. Bearing in mind the documented history of this mother’s inability to control these children, their relationship with one another and wholly inappropriate empowerment, it strikes me as highly damaging in this case. I am disappointed that the professionals in this case are unable truly to understand this message. The recent decision of the Court of Appeal, Re M (Children) [2013] EWCA Civ 1147 requires to be read by all practitioners in this field. Lady Justice Macur gave firm and clear guidance about the importance of contact. Parents who obstruct a relationship with the other parent are inflicting untold damage on their children and it is, in my view, about time that professionals truly understood this.”

It is unusual to see judgments published by the county court as this is. The case concerns an intractable contact dispute made more complex by the subject children having a half‐sister who also lived with the mother who lives some distance from the father.

In earlier proceedings, the court had made an order for shared living arrangements as a result of the mother´s failure to promote the children´s relationship with the father or properly recognise his role in their lives. The mother was also referred to the Crown Prosecution Service in those earlier proceedings for having committed perjury.

Subsequent to the order for shared living arrangements having been made (within a child arrangements order), the mother failed to comply resulting in the father applying to court for sole residence with parenting time being near equally split between the two parents´ homes.

Examples of the mother´s behaviour include:

Her frustrating telephone contact (claiming she did not have a phone when she did);
When telephone contact did resume, her having the children call at inconvenient times or her allegedly letting the children choose when to call;
Unilaterally making decisions as to the children´s choice of school;
Her being present at the school with the half‐sister on the days when the father was due to collect the children;
Turning up at the children´s school with dirty clothing claiming the father was incapable of providing adequate care;
The mother frustrating holiday contact despite the judge having previously ordered the father set the dates due to the mother´s previous conduct.
The children´s guardian, in her report, describes the mother as “continuing to be contemptuous of the father and devaluing his role in the children´s lives”.

Residence is reversed, although the children to remain at their current school to minimise disruption to them while the father considers relocation. In the event he is unable to relocate by the summer of 2016, him then to decide whether to relocate the children and change their school to one near his home. The judge curtails the mother´s parental responsibility in respect of having the children examined by any professional or their being enrolled in extra-curricular activities without the father´s consent.

A copy of the new order was directed to be given to the children´s school and nursery, the order making clear that both should treat the father as the principle primary carer regardless of the current division of time in each parent´s care.

Most unusually, were the mother to be convicted of perjury and sentenced to jail, she must be prepared to allow the father to care for the children at her home along with their half-sister during her period of incarceration.

Temporary Removal from Jurisdiction Case Law

Shared Living Arrangements Case Law

Section 91.14 Case Law

Reversal of Residence Case Law

Paternity Testing Case Law

Parental Alienation and Intractable Contact Dispute Case Law

Occupation Order Case Law

Without Notice And Non Molestation Order Case Law

Non Biological Parent Case Law

Leave to Remove Case Law

Jurisdiction Case Law

Interim Contact Case Law and Practice Directions

Indirect and Suspension of Contact Case Law Menu

Internal Relocation Case Law

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