V v V

Intractable opposition by a residential parent to contact is not, by itself, a proper reason to restrict a child’s relationship with the other parent. The court must apply the welfare checklist and assess the continuing emotional harm caused by the loss of that relationship. A transfer of residence may be justified where the residential parent persistently frustrates contact, involves the children in false allegations or investigations, and lacks the capacity to change. Such a transfer must be justified by the children’s welfare and must not operate as punishment for non-compliance.

The father applied for residence orders in respect of his two young daughters after several years of contact litigation. The mother had repeatedly alleged abuse, suspended contact and resisted the father’s relationship with the children. The allegations were investigated and found to be unsubstantiated or substantially exaggerated. The court considered the evidence of both parents, the CAFCASS officer’s reports, the children’s wishes and feelings, and the risks of leaving the children with the mother or transferring residence to the father. The central issue was whether the children’s welfare required residence to be transferred because the mother’s conduct made a normal relationship with the father impossible.

1. Residence order made. The children’s welfare required residence to be transferred from the mother to the father.
2. The court applied the welfare checklist in Children Act 1989, s.1. The children’s wishes and feelings were relevant, but were not determinative because of their young age and the influence of the mother. The court considered their physical, emotional and educational needs, the likely effect of change, the harm suffered or risked, and each parent’s capacity to meet their needs.
3. The children needed a relationship with both parents. The mother had not established by credible evidence any proper basis for denying or restricting contact. Her implacable hostility was not a proper basis for doing so, particularly where it had led to coaching, false or exaggerated allegations, and repeated intrusive involvement of the police, social services and doctors.
4. Following the principle identified in Re K (Contact Committal Order) [2003] 1 F.L.R. 277, difficulties over contact may justify transferring residence where the order is fully justified by the child’s welfare. The remedy must not be imposed to punish the obstructive parent.
5. The court found that enforcement measures, including a penal notice, might secure the physical delivery of contact but would not prevent continuing emotional harm or the poisoning of the children’s relationship with their father. Leaving the children with the mother therefore carried the greater long-term risk, notwithstanding the trauma of an immediate change of residence.

First-instance decision. No appellate history was stated in the judgment.