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Lessons to be learned from Re: L [2019] EWHC 867 (Fam)

Anarkali Musgrave, barrister with Coram Chambers, looks at Re: L, a case involving an application by the father for change of residence of a child, in which the Guardian chose not to seek the child's wishes and feelings.

Anarkali Musgrave, barrister, Coram Chambers
















Anarkali Musgrave
, barrister Coram Chambers


When children make allegations of abuse there are typically two outcomes: either there is truth in the allegations, or the allegations are false. The difference between these scenarios, in my view, lies at the heart of disputes involving parental alienation and intractable hostility. For the child involved, damage will almost certainly be sustained either way.

Re: L (A child) EWHC 867 (Fam) is a case which examines what happens to a child in the latter scenario, where the allegations were found to be false. In this case, HHJ Tolson QC found at first instance that the boy had been manipulated (albeit not coached) by the maternal family into making allegations of sexual and physical abuse against his father, with whom he actually enjoyed a very good relationship. At first instance the judge determined that only the father would allow the child to have an unfettered relationship with both parents and duly transferred residence. The mother appealed.

The case is interesting for throwing up a number of points about the way in which a parent's hostility towards the other ought to be addressed by the court and professionals. In the writer's view, it very much diminishes the applicability of the 'weapon of last resort' test which is so frequently wheeled out by resident parents in cases of this sort. It also addresses the duties of Guardians in situations such as these, where the requirement to provide the child's wishes and feelings to the court clashes with the overarching concern of the child's welfare.


Change of residence – no longer a weapon of last resort

Both at the appeal hearing and in his written judgment McFarlane LJ rejected the language of the Re: A (Residence Order) [2009] EWCA Civ 1141 test, saying:

'whilst having the greatest of respect for the two judges who gave judgments in Re: A, I would wish to distance myself from the language used insofar as it refers to a decision to change the residence of a child as being a 'weapon' or 'a tool'… such language in my view risks moving the focus of the decision making away from the welfare of the child which must be the court's paramount consideration.'

It is perhaps not surprising that a judge who has previously described the nomenclature of 'Residence' and 'Contact' orders as 'pejorative' would be keen to distance himself from such pugnacious vocabulary. Nevertheless, the President's point is acute: and in this the actions of the court mirror the situation on the ground – the child is too often lost whilst the focus rests so heavily on the parent. Hopefully, this judgment will help to return the family court's gaze more resolutely towards the child in line with the overarching concern of the Children Act.

What is retained from previous caselaw is the principle in Re: C (Residence) [2007] EWHC 2312 (Fam): that resident parents who harm their child by not giving them permission to have a relationship with the other parent should be given a chance to improve matters if they have demonstrated sufficient insight. The insight of the parent with whom the child lives is likely to be the turning point in cases of this nature because of the competing trajectory of the delay principle.

This really begs the question of how, practically, insight is to be assessed. In public law proceedings this is achieved either when an expert report is obtained or a judge hears evidence and determines the matter. However, private law proceedings have a much greater capacity to drift endlessly by way of uneasy 'consent' orders, passed around any and all available judges who already struggle with overflowing lists. The danger of this situation, as we find in Re J (Contact Orders: Procedure) [2018] EWCA Civ 115, is that while litigation drifts on and on, the children, in contrast, develop fast; too often in the context of one parent's hostility towards the other. The corollary of allowing cases to drift within an environment of hostility is that children become more entrenched and more damaged as a result with the prospect of permanent estrangement becoming more realistic.

The best way to avoid such situations continuing is to refuse to allow cases to bounce back interminably. Too often, parents who do not promote contact will find that the inherent delay of the court system is their best ally. To that end, the introduction of legal advisors sitting alone for private law hearings is very much a step backwards.  Put plainly, if there is ever to be a change of residence the first requisite is judicial findings of some sort, which plainly requires a hearing with evidence and allegations. Practitioners will know that it can be a daunting battle to secure that sort of hearing in the first place; and Re: L is an excellent example of this insofar as alienation and the damage to the child had been a recurrent concern, both of the father and the Cafcass officers involved, for the preceding 6 years of litigation.


The test for transfer

This is an interesting aspect of the case, especially when we arrive at what the 'threshold' for a change of residence may be. At paragraph 59 of Re: L the President says:

'It is important to note that the welfare provisions in CA 1989 S1 are precisely the same provisions as those applying in public law children cases where a local authority may seek the court's authorisation to remove a child from parental care either to place them with another relative or in alternative care arrangements. Where, in private law proceedings, the choice, as here, is between care by one parent and care by another parent against whom there are 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.'

One of the peculiarities of the current system is that moving a child away from the parent it lives with is so very much harder to do in private than in public law proceedings. Naturally this is largely to do with the nature of the cases: private cases are private essentially because they do not meet the trigger for public law proceedings to be issued. It stands to reason that a case not serious enough to justify local authority involvement will require different remedies typically. However, in entrenched parental hostility cases, where parents can be quite emotionally abusive to their children, there is also in my view quite a significant judicial and professional reluctance to move children away from the abusive parents. Re: L goes someway to addressing this by making it clear that the trigger may be less serious than that in public law proceedings. This is a significant change to the regime and could mark a very different approach to the courts with change of residence cases – ie that they become much more possible.  There appears in this approach to be some consistency with the President's 2018 speech to NALGRO where he compares the loss of a relationship with one parent to adoption. Given what is said in Re: L it is clear that once a private law case moves into the sphere of a s37 report being commissioned, the possibility of a change of residence, regardless of the outcome of that report, should be firmly on the judicial table.


The obtaining of ascertainable wishes and feelings

In Re: L the Guardian was heavily criticised by the mother for failing to ask the 8-year old child with which parent he would like to live. On the face of it, the criticism is easy to understand: not only is the court required to consider these wishes and feelings as part of any decision-making process but Guardians are required to report to the court the wishes of the child 'in respect of any matter relevant to the proceedings' as per PD 12A para 6.6(b).

In the instant case the Guardian had made the decision not to ask the child where he would like to live on the basis that to do so would harm him.  The child was already withdrawn, monosyllabic and only talking to make up more allegations against his father when he came to see his Guardian.  For her part, she was anxious to avoid heightening his anxiety on the matter or to do anything which would lead him to reject verbally his father more than he was already doing. At the time she had not observed the child's contact with his father but when she did so she described it as a 'highly positive relationship' in direct contrast to the way in which the child spoke about it away from his father. She did not think that the child knew of his father's application to live with the child and did not wish to bring the child any further into the litigation ring.

At first instance HHJ Tolson QC determined that the answer of the child would have been obvious anyway – he would only ever have said he wished to live with his mother. Whilst the mother did not appear to disagree with that analysis she argued that the failure to have asked the child was so great a procedural breach that it invalidated the judge's judgment and subsequent decision to transfer.

What this argument ended up exposing went to the heart of the case before the court. Essentially, the child was so damaged that his wishes and feelings could not be clearly ascertained even if they had been asked for. The court was reminded that 'ascertainable' does not simply mean what children say but also how they behave

This is clearly in line with earlier Court of Appeal decisions including H v H [2014] EWCA Civ 733 and Re A [2013] 2 All ER D 62. In H v H the Court of Appeal quoted with approval what was said by Parker J at first instance: '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 the actions rather than the words.' In Re A, McFarlane LJ (as he was) said at paragraph 68: 'The evaluation of the weight to be given to the expressed wishes and feelings of a teenage child in situations where the parent with care is intractably hostile to contact is obviously not a straightforward matter, no matter how consistently and firmly those wishes are expressed.'

Bluntly put, however, this point took the argument forward little further in this case. In the end, the court determined that the welfare principle took precedence over the procedure which went towards fulfilling the requirements of other parts of the Act.  Therefore, the Guardian's decision not to press the child on this matter was upheld by the judge as being compatible with the over- arching framework of the dominant welfare principle. 


Conclusion

One of the difficulties of this decision (and one not put by the mother, interestingly) is that it is likely to be applicable to a large swathe of children in proceedings of this sort up and down the country. In cases such as these it is very easy to imagine circumstances where the mere posing of a question about residence or similar could risk harming the child by increasing its anxiety, making it feel it had to take sides in a parental dispute, or by indirectly suggesting it has agency in what will ultimately be an adult decision. There is a faint risk with the Guardian's approach approved in Re L, that fewer children will be asked for their views in circumstances where ordinarily they would have been – and the courts may be the poorer for it. After all, taken to its logical extreme, the welfare principle is hardly compatible with much litigation at all, considering the stress and anxiety which litigation typically carries  for both children and their parents.

What is plain is that this judgment was not intended to water down any requirement for the court to hear from the children through their Guardians.  The court very carefully did not endorse the suggestion that questions must not be asked if they can harm children. Instead, each case must be carefully considered on its facts not just by the court but also by the professionals working directly with the children and parents. Instead, the judgment can be seen as a return to the language and values embedded in the Children Act itself. The President holds that it is not for the courts to put a 'gloss' on the balance of harmtest, which in and of itself is straightforward enough. He has indicated also that a change of residence does not need to meet the s31 threshold test. It is time for the courts and practitioners to catch up.