Re H (A Child)

In Children Act proceedings, a judge exercising a quasi-inquisitorial child-protection function cannot decide a variation application on the artificial footing that alleged abuse did not occur. The allegations must be withdrawn or properly adjudicated. If pursued, the court must secure a proper investigation, despite family-arrangement constraints.

The welfare of the child remains paramount under the Children Act 1989. The Act contains no presumption that a biological parent must prevail over a settled non-parent carer. A long-term carer may become the child’s psychological parent, and competing claims must be resolved under the statutory welfare test and checklist. A change in circumstances is a sound practical rule when revisiting an existing order, but is not a strict legal precondition.

The child had lived with her grandmother since 1994 under a residence order made in 1996. In 1999 the mother applied to vary that order, alleging historic sexual and physical abuse by the grandfather. Because of time constraints, the allegations were not tried. The judge proceeded on the basis that they had not occurred and dismissed the application after making welfare findings.

On appeal, the mother challenged the failure to determine the allegations, the judge’s approach to the supposed presumption favouring a natural parent, the treatment of change of circumstances, and the contact arrangements. The central issues were the proper handling of abuse allegations and the statutory approach to varying a residence order.

1. Disposition. Permission to appeal was granted, but the appeal was dismissed unanimously. The contact provisions were set aside and replaced with an order for contact during the child’s three school half-terms. The parties’ costs were subject to legal aid assessment.
2. Historic abuse allegations. Thorpe LJ held that the judge had erred in attempting to decide the case on the footing that the allegations had not occurred. In Children Act proceedings the judge has a quasi-inquisitorial role, with child protection among the principal responsibilities. Allegations of this nature must be withdrawn or adjudicated. If pursued, the court must secure a proper judicial investigation, even within the practical constraints of family arrangements.
3. The error did not require the residence decision to be reversed. The judge had made clear findings concerning the mother’s credibility, responsibility and parenting capacity, and the grandmother’s competence and established care. Those findings independently justified continuing the child’s residence with the grandmother.
4. Welfare and parenthood. On an application to vary a section 8 order, the court must apply the statutory welfare scheme. Welfare is paramount under section 1(1), with particular regard to the checklist in section 1(3), pursuant to section 1(4)(a). The court rejected any statutory presumption favouring a biological parent. Judicial guidance must be treated cautiously. Where a child has long been settled with a non-parent, that carer may have become the child’s psychological parent, and the competing claims must be resolved by welfare.
5. Change of circumstances and Article 8. A fairly fundamental change before departing from an existing welfare decision is a sound rule of practice, but not a strict legal burden imposed by the Act. Article 8 added nothing to the mother’s principal statutory argument, since the mother, grandmother and child each had relevant family-life interests. The contact order was varied on appeal to reflect the grandmother’s move and the impracticality of alternate weekend travel.

• Court of Appeal (Civil Division) — Permission granted. Appeal dismissed, except that the contact provisions were set aside and replaced with contact during the child’s three school half-terms: [2000] EWCA Civ 3011.
• Principal Registry of the Family Division — Mr Nicholas Mostyn QC, sitting as a deputy judge of the County Court, dismissed the mother’s application on 8 June 2000 to vary the 1996 residence order.