Battle For A Residence Order

In Re S the parents separated before the child was born. The father applied for contact when the child was one year old. Contact broke down in 2006. In January 2010 HH Judge Bellamy made a residence order transferring permanent residence of the child to the father. In March HH Judge Bellamy was told that the child (now 12) would rather go into foster care than live with his father.

It was ordered that the mother return the child to his father’s home. However the Court of Appeal instead made an interim care order, whereby the child would go to foster parents for 21 days before returning to live with his father. Contact with his mother would be by telephone only.

The child refused to engage with his father during this time, and after a fifth contact session the guardian told the father that she was deeply concerned about the child’s mental state. The father agreed at a hearing the next day that the child could return to live with his mother, albeit the interim care order should continue. The local authority said it was still committed to preparing the child to live with his father.

Further contact visits did not help and so therapeutic sessions began. The child fell into depression and it was felt the therapeutic approach (which could take up to 12 months) could not work alongside a change of residence. A decision was finally made in July 2010 for a residence order in favour of the mother, with a supervision order for one year and for the father to have indirect contact only.

An order was also made that neither parent should make an application to the court until the child reached the age of 16, save with the permission of the court.

Hopefully this will be a lesson for the Courts in being more considerate when considering changing residence to help deal with failures in contact because of a child’s alienation, especially when they are as old as 12 years. It is clear from the case that not enough weight was given to the views of the child in this case.

The judge in this case also criticised the local authority approach, saying it was not clear whether they accepted either the concept of alienation or the assessment that the child was alienated from his father.

In terms of affecting the legal position, it might give solicitor’s pause for thought when automatically considering ‘change of residence orders’ for older children as a solve-all solution.

Elizabeth Bettes

Published on 13/09/2010