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Changing Residence – A Judgment of Solomon

Claire Brissenden of Trinity Chambers considers the balancing act exercised by the court when it considers the change of residence from one parent to the other.

Claire Brissenden, barrister, Trinity Chambers

The recent case of S (A Child) [2010] EWCA Civ 219 has brought to public attention that which those in the legal profession have known for a while, that a decision to change residence from one parent to another can be an extremely difficult balancing act. The factors involved are myriad and the eventual outcome uncertain. Sometimes it is a case of the lesser of two evils. Much more often though, both parents can offer a high standard of care, and it is then a delicately weighed exercise; an almost impossible decision for a judge - a true Judgment of Solomon. In S, the Court of Appeal dismissed an appeal by the mother against an order that the child, who was almost 12, should go and live with his estranged father, despite never having lived with him, and having had no contact with him for four years. There was no criticism of the care given to the child by his mother, only that she had failed to facilitate contact and had been obstructive. The child, significantly, was vehemently opposed to a transfer of residence, as was the child's NYAS guardian.

What is clear from recent case law is that transfers of residence are being considered more regularly by judges, who are frequently at the end of their tether in intractable contact disputes. Whilst it may seem extreme, and a somewhat draconian measure to take, to many it is the only option left once everything else has been exhausted. Simplistically put - reports are read, evidence and submissions heard, judgment given and off the child goes to their new home. What is rarely known is what happens after the case ends and it leaves the court arena. For most of us we simply endorse our brief and never hear about the client again. The case of A (A Child) [2007] EWCA Civ 899, which bears striking similarities to S (A Child), gives us a rare opportunity to examine a case after the doors closed in the Court of Appeal and see what happened next.

The case had started in the Canterbury County Court, after the parents separated when their son was about a year old. Historically the mother had difficulties in managing her feelings as regards the boy having contact with his father. This resulted in extensive court proceedings. The Court of Appeal estimated there to have been 14 hearings in relation to the matter of contact. The same judge had presided over the last six hearings, and eventually ordered the boy, who was eight, to move to live with his father, who lived some 300 miles away. Not only was this against the child's wishes and feelings, it was heavily based on the findings of a psychological report, which found that the mother suffered from a personality disorder, which prevented her from having any insight into her behaviour or reforming it. This was felt to pose a risk of emotional harm to the child, although all the professionals involved in the case commented on how remarkably well-adjusted he seemed to be. The mother had continually challenged this report, asserting that she had no insight into her condition because there was in fact no condition.

The judge and the Court of Appeal were acutely aware that the change of residence might involve some short-term trauma to the child, but that the benefits were felt to outweigh these "transitory" problems. The recorder said:

"In my judgment, [he] will initially find the move difficult. He will no longer be living with his mother, nor near his friends and maternal grandparents and he will be changing school. There will be some home sickness. This emotionally stable boy will, in my judgment, within a few weeks find that he is otherwise easily able to overcome the initial home sickness or unhappiness. The long-term benefits to him of a move are a good deal more significant and they outweigh the initial homesickness."

The mother refused to accept the court's decision and a few months after the move issued proceedings to vary the residence order. The case was transferred to Middlesbrough County Court, and had judicial continuity from the transfer. The district judge initially took the view that as the Court of Appeal had confirmed the judgment of the recorder in Kent, it would be an uphill battle to achieve a different outcome. The boy however, continued to be unhappy in his new home, and by this time was making threats to self-harm. A Section 7 report was ordered and it too treated the judgment of the Court of Appeal as a virtual bar to a change of residence back to mother, reliant as it had been on the diagnosis of personality disorder. Mention was made of the boy's unhappiness, but more significantly, it was apparent from the report that he felt that no one was listening to him, and he was starting to feel worthless and as if his opinion counted for nothing.

It was on this basis that the district judge reluctantly appointed a Rule 9.5 guardian, so that the boy could feel that his voice would be heard, even if it was not acted upon. Fortunately for the child, the guardian did listen to him, and realised that far from the short-term trauma that had been predicted, this child was suffering immensely from the move, and was desperate to live with his mother again. The guardian's report describes a lonely, friendless boy who took solace in electronic gadgets, compared to the popular and well-adjusted little boy he had been in Kent. The guardian was less concerned with the mother's alleged personality disorder, than with the wishes and feelings of the child. The guardian recommended that the child be assessed by a psychologist to establish the extent of his feelings, and examine where his attachment lay.

The father was unsupportive of an assessment of the child, as in his opinion the boy was just being difficult. Criticism was leveled at the father for failing to take the boy's mental health seriously or to involve CAMHS, despite the court's previous recommendations. The judge ordered a psychological report to be prepared and listed the case for final hearing. After assessment of the child and whilst the psychological report was being prepared, events overtook the court process. The boy, whilst on a staying contact with his mother in Kent, threatened to take his own life if he was forced to return to father, which rather increased the urgency of the situation. He was seen by a GP who determined that he certainly had a suicidal intention, and had given serious thought about the means. An emergency hearing was listed, and upon the recommendations of the guardian, and after hearing the tenor of the almost completed psychologist's report, the child was allowed to remain with mother pending the outcome of the final hearing. At this point a Section 37 report was ordered from Kent Social Services.

The boy thrived back home in Kent with his mother and was described by the guardian as "a different boy. He is outside all the time doing things, and he has colour in his cheeks". The psychologist's report recommended a variation of the order and a residence order in favour of mother, as the child was suffering severe emotional harm due to the move and had not settled in Darlington. The guardian went further, and in her report was critical of the original decision to remove the boy from his mother, stating that the decision to change his residence had had a "profound and negative effect on his developmental and psychological wellbeing" and that this had "irreparably harmed him". Following these reports, on the first day of the final hearing (over 2 years after the Court of Appeal ruling), the father consented to a residence order in favour of mother.

Now, A (A Child) may not be indicative of all the cases where a change of residence has been ordered. It is more than likely that some of them work well and the child goes on to have quality interaction with both parents. However, where there are clear indications, such as in S (A Child) [2010] EWCA Civ 219, that the child is resolutely opposed to a change of residence, and is indicating a desire to self-harm, then the need to listen to the child becomes greater, and decisions should be made much more carefully.

There are clear guidelines that must be followed when determining the weight that should be given to a child's wishes and feelings. Age is obviously a factor, but not the only one. Understanding is the other, and this is where difficulties arise. One ten year old child may differ greatly from another in their understanding of a situation, and this affects the weight that should be placed on those views. It appears that it is this aspect that is being over-emphasised in court proceedings. In S (A Child), the psychologist was of the opinion that despite being nearly 12, the boy's views should be disregarded. He advised that "it is important for the parents and for all of the professionals working with S to recognise that his expressed wishes and feelings are irrational and should form no part in the court's decision making." Despite this, the judge accepted that due to legislation he must pay some regard to the boy's views. However, he ultimately rejected them as not being his true feelings due to alienation from his father.

In A (A Child), when the case was before the recorder in Kent, prior to the change of residence to father, it was said of the boy (who was 8 at the time) that that he was "not of an age to know what is best for him" and that it is "adults who must determine that".This begs the question, when is a child "of an age" to know what is best for them? The Court of Appeal's recent approval of Black J's decision to take account of the views of a 5 year old girl and her 8 year old brother in W v W [2010] EWHC 332 (Fam) may well help matters. However, the general principles were propounded by Butler Sloss LJ in Re S (Minors)(Access: Religious upbringing) [1992] 313 at page 321, a case involving two children aged 13 and 11:

"Nobody should dictate to children of this age, because one is dealing with their emotions, their lives and they are not packages to be moved around. They are people entitled to be treated with respect."

Yet, packages are what they seem to be. Children who have strongly-held wishes which are clearly and persistently articulated to those professionals involved in the case, are not being heard. This is of enormous concern. The decisions that judges are making about a change of residence are of the utmost importance to these children. We are not talking about how much contact a child has with an absent parent, this is about uprooting a child from possibly the only home they have ever known, from a school, friends and social infrastructure they are familiar with, never mind from a parent to whom they have their primary attachment. The possible consequences of getting it wrong are unthinkable.

Children are fragile creatures, still developing their personalities and beliefs about the world. To remove a child forcibly against his wishes cannot fail to affect him, and alter his perception of himself. Not only might he feel that his opinions are not listened to, he may start to doubt the validity of those opinions, or seriously question the motives of those in authority. If the adults in his life pay little regard to his views, then what are those views worth? This could, and did in the case of A (A Child), lead to threats of self harm. The barrister representing the guardian in S (A Child) was clear that the boy in that case had also threatened suicide if his residence was changed:

"The child has already expressed an intention to harm himself, potentially life threatening; in particular his refusal to eat and to throw himself out of the car. He has shown he has a real intention to carry out his threats. He is a rather intense individual, very calm and not hysterical."

If a child's views are so deeply held, and so ignored, then the potential for harm is obvious. There is unfortunately, no straightforward answer to any of this, every case is fact-specific, and every judge will do just that, judge the case on the facts. However, A (A Child) provides an insight into some of the problems that can result, and hopefully a moment to pause and consider the magnitude of the decision judges are making when they contemplate a change of residence.