Neutral Citation Number:  EWHC 1948 (Fam)
IN THE HIGH COURT OF JUSTICE
MANCHESTER DISTRICT REGISTRY
Manchester Civil Justice Centre
Date Of Judgment: 12 July 2012
Date of hearing: 5 July 2012
B e f o r e :
Mr Justice Peter Jackson
Re: M (Children)
Mr David Maddison (instructed by W H Darbyshire & Son) appeared for the Father
Mr Paul Gillott (instructed by Coodes Solicitors) represented the Mother
Mr Karl Berry (instructed by Crosse & Crosse) represented the Children
- This is an application for a transfer of
residence by the father of two boys: J (10) and B (8). It is opposed by
the mother who has always been the boys' main carer. The children
themselves are represented by a Children's Guardian, who has
investigated but makes no firm recommendation.
- For the reasons given below, I will make a
further contact order providing for two periods of staying contact with
the father during the forthcoming summer holidays, and an order that
provides that if either of these contact periods does not take place,
the children will move to live with their father.
- This order will be the last attempt to
allow the children to remain living with their mother while enjoying
relationships with their father and wider family. The mother will now
have a final chance to behave with parental responsibility.
- The summer holiday lasts for 6/7 weeks,
beginning on 20 July and ending on 5 September. The mother will make
the boys available for contact with the father for two ten-day periods:
23 July to 2 August, and 22 August to 1 September. The handover is to
take place at the midway point referred to in previous orders.
- I direct that if the children do not go
to stay with their father on each occasion, they shall with effect from
the first date of each period live with the father and the mother shall
immediately give up the children to the father. If she fails to do so,
an application for the recovery of the children should immediately be
made under s.34 Family Law Act 1986, to me if I am available.
- The full text of the order appears at the foot of this judgment.
- Until about a year ago, the family lived
in the Blackpool area. J was born in 2002 and B in 2004. In December
2006, the mother gave birth to her third son (W, now aged five) by a
different father. In January 2007, the parents separated.
- The mother has since formed a
relationship with Mr A, a Turkish national with whom she lives. They
have a son, A, born in April 2011 and now aged one. The family depends
on state benefits, living in a three bed-room rented flat, with J and B
sharing a room.
- The mother's mother lives in Blackpool.
The mother is estranged from her, but the father is on good terms with
her. The mother's father, with whom she had until recently had little
contact, lives in Devon.
- The father works as a carer. Since
2007 he has been part of a team of six that cares for an 11-year-old boy
who has cerebral palsy. The father's partner, Mrs W, is part of the
same team. They live in a two-bedroom flat and are looking to buy a
- The father's parents live in Blackpool, and his married brother, who has four young children, lives nearby.
- Following the separation there were
difficulties between the parents and between the mother and her own
mother. The father considered that the mother was unnecessarily
restricting his contact and in May 2010 he applied for a contact order.
At that stage he was having weekly contact on a Sunday for the day. An
order for reasonable contact was made, together with a prohibition on
the children being removed from the jurisdiction and a direction for a
s.7 report from CAFCASS.
- Also in May 2010, the father made a
referral to social services, expressing concern about harsh treatment of
the children by Mr A. Social services carried out an initial
assessment which did not substantiate the concerns. The mother was
observed to have a warm, positive relationship with all three boys. J
and B spoke warmly of Mr A, and also described their father, who they
had not seen for several weeks, as 'nice', 'kind', and 'generous'. They said that he took them where they wanted to go and made them laugh. The social worker wrote that "It was very evident that they love their father and are looking forward to seeing him".
- The mother had stopped contact with the
maternal grandmother, and in July 2010, the grandmother was given
permission to apply for contact. This application was later withdrawn
in favour of the father's application.
- In July 2010, the father expanded his
application to seek a residence order. Some contact took place up to
August 2010, when it was again stopped. The mother said that the
children did not want to go after an incident at a swimming pool in
which the children said that the father had tried to drown J, and B
complained of being squeezed on another occasion. After investigation,
the conclusion was that there may have been some incident of rough play,
but nothing to cause real concern. The allegation, however, has
remained important in the minds of the mother and the children.
- There was then no contact between August 2010 and April 2011.
- The CAFCASS report was filed in
November 2010. It recorded J and B as saying that they wished Mr A was
their real daddy, and referring to their father and members of his
family by their first names. They said that their maternal grandmother
was not their grandmother anymore "because she forces us to eat sweets and be silly".
- The CAFCASS officer recorded this:
"B also said: '[F ‐ the children used the father's first name]
dragged us away and punched Mummy a few weeks after they got married.
[F] wouldn't let Mummy drive in the car and forced us to walk in the
rain to school.' I asked the boys if they remember this and they said
no. I asked how they knew this and J told me: 'Mummy told me.' I asked
when and he replied: 'Last week, I think.' He also added mummy had
said: 'Remember, the CAFCASS lady is coming.' I asked J if he thought
mummy wanted him to tell me about that and he said: 'Yes.'"
- The boys wrote a letter to the judge saying that they hated their father because he tried to drown J and strangle B.
- The CAFCASS officer reported that there
was no evidence that the children were at risk from the father but that
the children's views were deeply entrenched and they felt that there
were two "teams" involved in the court process: they had chosen "mummy's
team". She said: "I feel there is a strong possibility of their
father and paternal family being completely eradicated from their lives
but it will take a great deal of work to alter their views without the
support of the mother." She recommended supervised contact in order
to assess and promote contact and, because the mother was not promoting
contact, the appointment of a Children's Guardian.
- In December 2010, the CAFCASS officer
was appointed as Guardian. At the beginning of 2011, the mother renewed
the children's passports, substituting her own surname for the boys'
- In February 2011, the Guardian filed a
report expressing significant concern that the children were being
coached into disliking their father and refusing to have contact with
him. There was then a change of Guardian. In March 2011 the new
Guardian filed a report in similar terms saying that there was no
evidence that the children's real wishes were not to have contact with
their father, as opposed to the wishes arising from the parental
conflict. She recommended restarting contact weekly in a supervised
setting, and in April 2011 this was ordered.
- In April 2011, A was born.
- On 11 April 2011, the Guardian
supervised a contact session. At the beginning, the children were very
reticent. J would not make eye contact and told his father he did not
like him. B became tearful and told his father that he missed him and
would like to see him more, and then gave his father a cuddle. The
meeting then became more relaxed and by the end the children said they
would like to see their father again. They became excited at the
thought of doing some cooking at his flat and the occasion ended with
the children cuddling their father and saying goodbye.
- On 16 April 2011, a Sunday, the
Guardian went to collect the children for a three hour visit to the
father's home. They were tearful and refused to go. Contact was
cancelled. The Guardian again expressed concern that the children were
being coached and influenced. She recommended further attempts, and
these were ordered. Once again, they did not take place, and on 27 May
2011, the District Judge directed a psychological report.
- That report was completed on 26 August
2011. The psychologist made a school visit, two home visits and four
contact observations. In a detailed report, she reported that the
children have a strong, secure emotional bond with their mother and a
positive bond with their siblings and with Mr A. Their relationship
with their father was anxious-avoidant in J's case and
anxious-ambivalent in B's. The children were doing well at school and
thriving at home, which was a calm and caring family environment. The
psychologist advised that the children should have "regular, timetabled consistent experiences of direct contact", supervised
in the first instance. She also recommended therapeutic intervention
for the children and parallel therapy for the parents.
- In the last week of the summer
holidays, at the end of August 2011 and within a few days of this
recommendation, the mother and children disappeared. Without any
warning to anyone, the mother drove with the children to Devon. Her
departure was unplanned. They all slept in the car for at least three
days before finding somewhere to rent. The father found out in early
September when he contacted the school in Blackpool at the beginning of
term to find out how they were getting on.
- The matter was returned to court on 12
September 2011. The mother did not attend and refused to tell her
solicitor where she was. The matter was referred to a Circuit Judge,
who made orders designed to establish the children's whereabouts and
ordered the mother to attend a hearing on 20 September. On that date
the mother did not attend. She was ordered to attend a meeting with the
Guardian and a further hearing on 3 October. The mother refused the
Guardian access to the children on 30 September and failed to attend the
hearing on 3 October. The father issued committal proceedings. An
order was made that the mother should attend a hearing on 17 October or
she would be arrested.
- The committal proceedings came before
me on 21 October. I reprimanded the mother for failing to obey the
orders to attend court or make the children available to see the
Guardian. By agreement a contact order was made that provided for three
occasions of staying contact: 24-27 October in Blackpool, 19-20
November in Devon and 27 December to 3 January in Blackpool. I ordered a
report on progress from the Guardian and a final hearing in February
- The three contact occasions took place
as ordered. I heard evidence about them in February and accepted the
father's evidence that the children in general had a good time with him
once they settled. The children were able to see their father and their
paternal grandparents and maternal grandmother, as well as their uncle
and cousins. There are photographs of the contact in the papers.
- In January 2012, following the New Year
contact, the Guardian visited the children in Devon. They were
extremely negative about the contact and had written a number of letters
saying how much they hated their father and did not want to see him. J
wrote that his father is not in his family, that he wants him to be
dead and wants Mr A to be his dad. In a letter to me, B asked "Why are you making me go?"
- The Guardian filed a report in which
she reported on the children's statements and the mother's account that
she tried to encourage the boys to go for future contact, but they would
not and were suffering emotionally. The Guardian found the children's
feelings to be genuine and "based on a wealth of knowledge". J told her he had no emotion but hatred for his father and B said that his father was not a nice man.
- The Guardian's recommendation at the
hearing in February 2012 was that she would be concerned about the
children having frequent direct contact. There was no evidence of
benefit from the contact that had occurred. She advocated that contact
should be twice a year for four hours, consisting of activities in the
children's home area. The next occasion would therefore be around
Easter 2012 and the next one after that around Christmas 2012.
- Having heard evidence, I found that the
Guardian's approach was profoundly flawed for reasons more fully given
in a judgment delivered at the time. In it I said this:
"I acknowledge that Miss H is not an experienced
CAFCASS officer, having joined the service in September 2010, but I am
of the view that she has mistaken these children's best interests by
falling into the following errors. Had she applied the welfare
checklist to this case she would have seen that it is not just about the
children's wishes and feelings and that it is not just about short term
problems, but about medium to long-term issues. Had she analysed the
children's wishes and feelings correctly she would have seen that they
cannot be taken at face value. They are instead, in my view, a
reflection of the children's loyalty to one parent, who happens to be,
in this case, their mother. I find that Miss H takes no account of the
losses and the effective estrangement of the children from their father
arising from her proposals.
I further find that her analysis does not take account of the fact
that if the children realise they can get their own way on this issue
it is a terrible lesson to them for life in future. If you disrespect
people, make up things about them and go on doing so you will, in the
end, be in control of your situation. J and B ought not to be in
control of their situation. Their views should be carefully considered,
as I hope I have done, but I think that it would be directly contrary
to their welfare to act upon the sorts of expressions of view that they
have presented to adults. These children need guidance."
- Of the children's wishes, I said:
"These wishes and feelings were conveyed both in
writing and in conversation to the Guardian in what I regard as being
most unsatisfactory circumstances. This case has, for a long time, been
about the influence that these parents have on their children and how
that limits the children's room for manoeuvre. Nevertheless, the
guardian interviewed the mother in the presence of the children and the
children in the presence of the mother and, as it happens, did not see
the father at all, but spoke to him on the telephone."
- I also rejected the Guardian's formulation that the mother should "continue to promote the contact and encourage the children to understand that their father loves and cares for them", when it was clear that nothing of this kind was in fact occurring.
- I therefore departed from the
Guardian's recommendation and made a final contact order providing for
contact in Blackpool at holidays and half terms. The initial dates were
13-17 February and 11-16 April 2012. On 13 February, the children
refused to go and on 22 February the father issued enforcement
proceedings. On 22 March, I appointed a new Guardian, Mr M of Plymouth
CAFCASS, and directed that the Easter contact visit should occur. It
did not. On 11 April, the children were taken to a contact centre for
handover with the Guardian being present. The children were hateful and
insulting to their father and after about four hours attempts to
persuade them were abandoned. On the way home the mother took the
children to McDonalds "for a treat, because they had been through a lot",
as she put it. The next day a further handover attempt was made, but
the children fooled around in the back of the car and then ran away.
The father described the children treating it as a game. He noted that
the children had not been brought with any bags of clothes or other
belongings for a five day visit.
- Mr M filed a measured report on 23
April, recommending that the contact order remain in effect and be
enforced. He advised that the parents attend PIP sessions and that
counseling be considered.
- The mother's response was to write a
long letter of complaint to CAFCASS, saying that she was angry at the
report, that something was "deep down wrong as to why the children do not want to go" and that any therapy should be with the father and children as "I am not the problem".
- On 30 May 2012, having heard evidence
from the parents and the Guardian, I made a further order. I suspended
the February contact order and instead directed two further periods of
contact, being 4-7 June and 23 July to 5 August. I told the mother that
a change of residence might be considered if contact did not take
place. I fixed a further hearing for 20 June (which might be vacated if
contact had occurred earlier in the month) and a final hearing in
- Once again contact did not occur. On
Sunday 4 June, Mr M had kindly agreed to oversee the handover at a
service station near to the mother's home. The father and grandfather
were present. Despite Mr M's firm encouragement, the children (who had
again been brought by the mother without any belongings) refused to get
into the father's car and ran off. They were missing for about 50
minutes and were found by a local farmer, having placed themselves in
some danger. The moment the mother got the children home, she wrote an
angry letter of complaint to CAFCASS about Mr M, saying that "When the children are in my care I never want him near them again, they have lost all trust in him".
- At this point, the father made a formal
application for residence. Having heard evidence from the parties on
20 June, I gave directions for a hearing on 5 July. I directed Mr A to
attend the hearing and the mother to bring the children to court to meet
Meeting with the children
- Before the hearing, I met J and B.
They are delightful boys, who were happy to talk about neutral topics
but clammed up at any mention of their father. I asked them if they
wanted me to answer the question "Why are you making me go?" and they said they did. I
explained why it was important for them to see everyone in their
family. I told them that I would try to make the best decision for them
about who they lived with and who they stayed with, and that I also had
to make sure that my orders were obeyed.
- I asked them to explain why they were
not going to stay with their father. The boys recited a well-rehearsed
list of grievances, familiar from the reports. When they stay, they do
not like him:
- Making them eat pork (they do not eat it at home)
- Pulling their bedcovers off
- Making them take a cold bath, with no bubbles or soap
- Stopping them playing Wii when they want to
- Not keeping promises ("If you do this, I will give you...")
- Shouting at their grandfather
- Pushing and pulling them (and on one occasion "punching" them in the car when they had deliberately broken a DS game)
J was emphatic that his father did not
love them. I told him that I was sure this was not the case, that
everyone loves them very much, and that they could see all the people
that love them without being disloyal to anyone.
- Telling them to call him "Dad"
With some effort, the boys remembered
some good things to do in Blackpool, such as the Illuminations,
horse-riding and going on the Big One (J being adamant that B was too
small to be allowed on). They wanted to live with their mother and not
to see their father at all. At first they said that, even if an order
was made, they would not go, but they then slightly relented and even
agreed to see their father at court for a short meeting.
This meeting then took place. The
Guardian recommended that the parents spoke to the children together to
tell them that they both wanted them to have contact with their father.
The mother was unwilling to do this alone with the father (which is
understandable) but also refused to speak to the children in the
presence of the Guardian, or the Guardian and the paternal grandfather,
towards whom she is less antagonistic. Asked why, she said: "Because they are all liars."
The meeting then took place with the
father and Guardian speaking to the children for about five minutes.
The children did not acknowledge their father but he was able to tell
them that he loved them and that he would take note of what they had
said they didn't like about contact. The Guardian reported that the
father did well, that the boys were listening intensely, and that they
showed signs of emotion.
I then heard submissions from the parties and reserved my decision.
The position of the parties
The father seeks a change of residence,
arguing that the mother has had innumerable chances to comply with
court orders and that her attitude shows that she will not do so in
future. Failing that, he seeks a residence order to take effect if
summer contact does not happen. He has filed evidence about the
practical arrangements he has made for the boys' care in terms of
accommodation, daily care and schooling. The only arrangement that is
outstanding is a school place for J in September at the preferred
school, but there is a place at another nearby school, and the father is
optimistic that this can be resolved.
The mother says that there should be a
contact order for three occasions of contact this summer, amounting to a
fortnight in all. She emphasises the strong bond between the boys and
herself, their half-brothers and Mr A. She argues that the children
would be harmed by a transfer of residence. The father is untested as a
main carer, there is no school place for J, and there is no certainty
that the children will settle.
The Guardian has filed a detailed report. Having carefully analysed the welfare checklist, he concludes:
"72. The children's ages and future needs require
a decision around residence and contact to be made very soon, which
must attempt to deal with their anxiety as well as promote their future
development and stability.
The Guardian says that he is available to visit the children in Blackpool during the course of the summer.
73. At this time I find it difficult to make a recommendation as
to whether a change of residence will be successful for the reasons I
set out in this report. The evidence suggests that there are risks
attached to this course of action, in a situation where the immediate
responses of J and B are not likely to be positive, leading to a very
unhappy situation. However, there is an unknown factor in that the boys
might settle better than anticipated.
74. At the same time, it seems clear that contact is unlikely to
occur if the situation remains as it is, as all reasonable efforts to
promote and facilitate contact have proved unsuccessful.
75. The mother says that a further attempt to contact should take
place. It might be that, if this does occur, then a prolonged period
of contact in the school holidays with the father might provide
evidence, which can be observed, as to how the boys are with him and
might provide a more informed way forward on the question of residence.
The welfare of J and of B, individually
and together, is my paramount consideration. In such an apparently
intractable case, careful analysis of the welfare checklist is
At the outset, however, a central
factual question must be resolved. Why do two children, who enjoyed
seeing their father as recently as April 2011 and at New Year 2012,
appear now to be so violently resistant to doing so again?
The mother says that she has done
everything she can, bringing boys to handovers and telling them to go.
She blames the father and the guardian for the failure of the recent
attempts. She for her part has complied with the order by 'allowing'
the children to see their father.
I do not accept any of this. I have
had the opportunity to observe the mother's approach over the past nine
months. I find that she does not in truth want the children to have a
good relationship with their family in Blackpool. I reach that
conclusion for these reasons:
- In May 2010 the boys, then aged eight and six,
were naturally and appropriately fond of their father, according to the
social services report. When the children saw their father in April
2011, they soon showed their true feelings, and the same can be said
about contact at the end of last year and over New Year 2012.
- Nothing that the father himself has done explains the
children's stance. Their accounts of him squeezing or drowning them no
doubt have their origin in boisterous play, but could not possibly have
justified the mother stopping contact for eight months. Their litany of
complaints about his behaviour during contact has the flavour of
intelligent children casting around for justifications.
- I note that the mother also stopped contact between the boys
and her own mother, whereupon they became very negative about their
grandmother. In effect, the children do not see people that the mother
does not like.
- The mother's true view of the father's importance is seen in her changing the names on the children's passports in early 2011.
- The same can be said for her abrupt removal of the children
to Devon as soon as the psychologist's report arrived in August 2011.
At a stroke, this placed a geographical distance of 300 miles between
the children and their father. Given the very limited financial
resources within the family, this is a huge practical obstacle. It also
amounts to a psychological obstacle: the children are old enough to get
the message that their mother would not take them to live in Devon if
she thought that it was important for them to see their father and
family in Blackpool.
- The fact that the mother did not tell anyone (the school,
CAFCASS, the psychologist, the Court) let alone the father or any of the
children's relations, shows the value she places on views other than
- Following the move, the mother initially defied the Court.
Committal proceedings were necessary in order to gain her attention,
after which three contact periods took place. Although these went well,
the mother was quick to say that the boys had not enjoyed themselves,
and then to seize on the misguided recommendation of the former Guardian
that there should be virtually no contact at all (8 hours a year in
- I have heard the mother give evidence a number of times. Her
statements that she supports contact are unconvincing, and her attitude
towards the father and others has become increasingly negative.
I therefore reject the mother's case
that she is trying her best to make the children go. Her real attitude
is that the children do not need these relationships at all.
- I have no doubt that if the children thought their mother
were serious about them going for contact, they would obey her. They
are obedient boys: in refusing to go they are not in reality being
disobedient, but obedient to what they know their mother expects of
I now turn to consider prominent factors in the welfare checklist.
First, the options available to the
Court are limited. Further delay is to be avoided. The proceedings
have been going on for over two years, with all the disadvantages that
continual litigation brings. The realistic alternatives now are to make
a residence order to the father, immediate or conditional, or leave
things as they are. In that case, the children will not see their
father or extended family in the foreseeable future unless the children
live with him or the mother changes her behaviour. A simple contact
order has been tried repeatedly and will not be effective. The question
is whether the mother will change her approach if a change of residence
is inevitable and not just possible.
Next, the children's wishes and
feelings. Here it is important to distinguish between real wishes and
feelings on one hand, and statements that the children make, and think
they mean, on the other. Having considered the matter carefully, I am
convinced that these children love their father and want to be able to
see him, but that they are being prevented from showing those feelings
or acting on them.
I find that J very much takes the lead in stating the boys' position, with B, though articulate himself, taking his cue from J.
Another indicator of the nature of the boys' feelings comes from this observation by the Guardian:
"41. It is difficult to know precisely what the
boys' thinking is, beyond what they express to professionals, and what
effect it has had upon their functioning, because the other common
indicators of unhappy children do not appear to be present. For
instance, their behaviour at school and in the community appears to be
acceptable, although their School notes that they are stressed after
attempts to provide contact have been made. The boys are not displaying
antisocial behaviour or medical or depressive conditions which might
also indicate confusion. Overall, J and B display good communication
and social skills and are able to interact in a pleasant and interesting
way if the topic is not to do with contact with their father."
I have not heard evidence from Mr A,
but there are no signs that he is effective in promoting the children's
relationship with their father. The Guardian writes:
"50. ... his views and wishes do not appear to
support ... J and B having contact with their father and it might also be
that he significantly influences the mother's thinking about this issue.
Whatever the reason, and despite the clear messages from the court
proceedings, it appears very unlikely that there will be any change by
either of these adults to promote contact more actively."
In relation to the children's needs, there are factors that strongly speak against a change of residence.
- In all other respects, they have made very good
progress in their mother's care. They have received good parenting and
are a credit to their parents, and particularly to her.
- They are securely attached to their mother, and to W and A,
and have a good relationship with their stepfather Mr A, who they
admire. The relationship between the boys and their younger
half-brothers is very important to them and a change of residence not
only means that they would see much less of them, but that their
upbringings would inevitably diverge.
- A change of residence disrupts the pattern of care within the
home that the children have been used to all their lives, despite
several changes of address while in their mother's care.
- They are doing well at school, despite several changes of school.
- The children have at the moment persuaded themselves that they do not want to see their father, let alone live with him.
- Without the mother's support, the children would be very difficult to move and they may not settle with their father.
A move would therefore bring real
losses for the children, and risks, which could easily amount to harm if
the transition was unsuccessful.
- Arrangements for contact with their mother and siblings would be difficult, at least at the outset.
The headteacher of the children's
current school reports very positively about the part played by the
mother and Mr A. She writes that: "I strongly believe that the
children under [the mother] are thriving very well. Any variation of
this will be detrimental to the wellbeing of the children, in particular
J, where the impact will be most felt immediately in terms of mental
health. This is also affecting the other children in the family,
resulting in the children's emotional needs not being addressed or met." I note these views, coming as they do from the specific perspective of the school.
Against these factors:
- A move is the only way of restoring the children's relationships with their father and wider family.
- There is no available therapeutic mechanism that can restore
their relationship with their father, given the distances, the lack of
funds and the mother's current attitude.
- The children's true feelings are, as I have found, being stifled.
- The father is, I find, capable of bringing up the children
appropriately and meeting their needs. Although he is untested as a
full-time carer, there is no reason to believe that he cannot take on
that role successfully with the support network that he has, and the
flexibility that his employment allows.
- I discount the suggestion that the children would come to
harm in the father's care as a result of any acts or failures on his
Balancing these factors, I look at the whole picture and at the short, medium and long-term consequences of each option.
- The father is likely to support the children's relationship
with their mother to the extent that it is within his power to do so.
The Guardian writes:
"69. ... If the father is able to stabilise the
emotions and behaviour of J and B in a short period of time, then there
is a good long-term chance of success. However, this is the unknown
area and the evidence suggests that this may not be easy or occur as the
father hopes it will do."
Addressing this "unknown area", I
acknowledge that there are a number of ways in which a transfer of
residence might run into difficulties. However, my conclusion is that
it is more likely to succeed than to fail. I believe that once J and B
realise that the Court is determined to see that its orders are carried
out, and once they experience a return to familiar people and places,
they will be relieved of the need to challenge and disrespect their
Weighing up matters, my conclusion is
that it is unacceptable from the point of view of the boys' welfare in
the short, medium and long term for them to be deprived of family
relationships that are essential for their development as balanced young
people, and as adults. Although leaving the children to grow up in
relative isolation of their mother's home is the easier short-term
solution, it does not provide the foundations that they need for a
healthy, rounded future.
It is also, as I have already noted,
bad for the children to be taught that the sort of manipulation that
they have been caught up in succeeds. That would be a lesson in
injustice. The Court has repeatedly concluded that it is in their
interests to see their father and it is plainly wrong for them to learn
that decisions of this kind can be ignored or defied, as is now
Although the boys are of an age where
their views have to be taken seriously, I am not deterred by what they
say they want to happen. This is not to disrespect them, but to respect
them by treating them as children who have no way of dealing with this
sort of pressure. A true appreciation of their wishes and feelings
points towards the restoration of their relationship with their father,
not to its abandonment.
The most difficult aspect of the
matter, in my view, is that a move would separate J and B on a
day-to-day basis not only from their mother, but also from W and A.
This would be a very great loss to all four children, but it is not a
total loss as the Court will be as concerned to maintain the children's
relationships with their mother and siblings in the future as it has
been to maintain their relationships with their father and wider family
in the past.
Taking everything into account, I
consider that the father's application for a residence order should
succeed. I will however allow the mother one final opportunity, and
direct that the order will not come into effect if contact is now
resumed. In the light of experience, I do not assume that she will take
this opportunity, but for the children's sake I hope that she and Mr A
decide to do so, and that they set about persuading the boys that they
A conditional residence order is in my
view appropriate where the court can confidently foresee the
circumstances in which it might come into effect. I therefore limit it
to the period of the next eight weeks. Thereafter, and until the end of
next year, the order will not automatically come into effect if there
are failed contacts, but if there are, the father can restore his
application before me for an early decision.
If the boys move to their father,
arrangements will after a while be made for contact with their mother.
What can be achieved will in large part depend on her level of
As arranged, the Guardian will inform
the parents and the children of the Court's decision. The children can
be told that I have considered their position very carefully and have
decided that they need to grow up knowing and seeing all the people in
their family who love them, and that if this can only happen with them
living with their father, then this is what is best for them.
I therefore make the following order:
1. The mother shall make the children available
for staying contact with the father as follows (and subject to the
following directions and conditions):
Orders for indirect contact have been
unsuccessful in the past, merely giving the boys more opportunities to
be rude to their father. However, in the new circumstances that now
exist, indirect contact for the father will only arise if the mother has
started to behave in a way that allows the children to continue to live
a. For ten days and nights from 23 July to 2 August 2012;
b. For ten days and nights from 22 August to 1 September 2012;
c. For five days and five nights every alternate school half-term holiday, commencing October 2012;
d. For one week in the school Christmas holidays,
including New Year but not Christmas in even numbered years (beginning
in 2012) and Christmas but not New Year in odd-numbered years (beginning
e. For one week at Easter (to include Easter weekend in alternate years beginning with 2013);
f. For three weeks in the summer holiday, beginning in
2013. The three weeks shall be divided into two periods of two weeks
and one week unless the parents agree in advance that it should be a
g. The mother shall deliver the children to the father at
[midway venue] at the beginning of contact and the father shall return
the children to the mother at that location at the end of contact.
2. The mother shall allow reasonable indirect contact by telephone and in writing.
3. In the event that the children do not go to stay with the
father for the periods referred to at paragraphs 1(a) and 1(b) above,
the following orders shall apply:
a. There shall be a Residence Order providing that the
children shall live with the father from the first date of the period in
b. The mother shall give up the children to the father on that date.
c. If the mother fails to give up the children, an
application for the recovery of the children should immediately be made
under s.34 Family Law Act 1986.
d. There shall be such contact between the children and
the mother as may be agreed by the parents in consultation with the
Children's Guardian or determined by the Court at the hearing currently
fixed on 1 October 2012, with liberty to apply in the meantime.
e. There shall be no face to face contact within three
weeks of the children moving to live with the father unless the Guardian
4. In the event that paragraph 3 above does not apply but the
children do not go to stay with the father on any other occasion
referred to at paragraphs 1(c) to 1(f) above, the father is at liberty
to restore his application for a residence order. If this does not
arise before the end of 2013, the father's application for a residence
order shall stand dismissed as at 31 December 2013.
5. The mother is prohibited until further order from:
a. Removing the children from England without the written consent of the father;
b. Causing or allowing the children to be known by any surname other than M for any purpose;
c. Applying of any passport or international travel document of the children without the written consent of the father;
d. While the children reside with her or have contact with her, changing the children's address from [address];
e. While the children live with her, changing the
children's school from [school], except when they move to secondary
school in the normal way.
6. If the children move to live with the father, the Children's
Guardian shall inform the local CAFCASS team and the social services
department of Blackpool City Council so that consideration is given to
how support for the father and children can be accessed.
7. The Tipstaff shall retain the children's passports until further order.
8. The judgment given by the Court today may be discussed or
disclosed by the Children's Guardian to the children's schools and to
any other professional person who should be aware of its contents.
9. This Order replaces previous Orders in this matter.
10. Any future applications are reserved in the first instance to Mr Justice Peter Jackson, if available
11. No order for costs save detailed assessment of each party's publicly funded costs.
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Michael Robinson © 2014
Family law information for parents whose children are resident in England and Wales
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The Custody Minefield