P (A Child)

In an opposed application to vary a residence order, the child’s welfare remains paramount. There is no statutory presumption that a child must be returned to natural parents or brought up in their religion. Religious and cultural heritage is a relevant and potentially weighty welfare consideration, but it must be balanced with all other circumstances.

Contact must support, rather than destabilise, the child’s permanent placement. A restriction under section 91(14) of the Children Act 1989 is exceptional and must be proportionate, but it may be imposed pre-emptively where clear evidence shows that further unmeritorious litigation would cause unacceptable strain to the child or primary carers.

N, a child with Down’s Syndrome, had lived with foster parents from the age of 17 months. In 1994 Wall J made a residence order in their favour. The natural parents later applied to vary that order so that N would live with them within their Orthodox Jewish family and community.

In 1998 Wall J refused the variation, reduced direct contact to four occasions each year, and required the parents to obtain leave before making further residence applications under section 91(14) of the Children Act 1989. The parents appealed all three decisions. The central issues were the weight to be given to N’s religious and cultural heritage, the risks of disrupting her established placement, the appropriate level of contact, and the propriety of the leave restriction.

1. Appeal dismissed unanimously. Lady Justice Butler-Sloss gave the leading judgment. Lord Justice Ward agreed and added a concurring analysis of religion and welfare. Lord Justice Tuckey agreed with both judgments.

2. On a variation application, the court had to proceed on the basis that the 1994 residence decision was correct unless a significant change, or later findings invalidating its basis, justified intervention. The child’s welfare was paramount under section 1(1) of the Children Act 1989. There was no statutory presumption capable of displacing that principle, and no presumptive right at this stage for natural parents to be preferred over the foster parents.

3. N’s Jewish religious and cultural heritage fell within her background for the welfare checklist. It was an important consideration, but its weight depended on the facts. The trial judge had permissibly found that N had only limited ability to understand and appreciate the religious heritage relied on, while fully recognising the benefits of Orthodox Jewish family and community life. Religion could not displace the overwhelming welfare factors against a move: N’s exceptional attachment to her foster parents, her inability to understand their loss, the absence of a workable gradual transfer, and the disruption to both home and school.

4. The court would not disturb a discretionary child-welfare decision unless the judge had erred in approach or was plainly wrong. Wall J was plainly entitled to prefer the evidence supporting the established placement. The psychological tie and need for an uninterrupted settled life outweighed the blood tie and the claimed religious benefit of relocation.

5. The reduction of direct contact to four times yearly was also upheld. Contact existed to preserve N’s link with her natural family, but frequent contact risked destabilising the placement on which her welfare depended. The strain on the primary carers was relevant because it could affect N’s security and care.

6. The section 91(14) restriction was justified. Such orders are discretionary, exceptional and proportionate safeguards, normally used after repeated unreasonable applications but available pre-emptively on clear evidence where the child’s welfare requires protection from unacceptable strain. Here the parents’ inability to accept the finality of residence, and the corrosive effect of further litigation on the foster placement, justified an unlimited restriction on further residence applications while leaving contact applications unrestricted.

• Court of Appeal (Civil Division): Appeal dismissed. The court upheld Wall J’s refusal to vary residence, his contact order, and the section 91(14) restriction.
• High Court, Family Division: On 23 March 1998, Wall J refused the parents’ application to vary the 1994 residence order, ordered direct contact four times yearly, and imposed a section 91(14) leave requirement for future residence applications.
• High Court, Family Division: On 16 November 1994, Wall J made a residence order in favour of the foster parents. The parents commenced, but did not pursue, an appeal.