M v M

In determining a child-related application, the court must treat the child’s welfare as the paramount consideration. A limited step which is necessary to enable a parent to formulate a properly arguable future application should not ordinarily be prevented merely because the other parent objects to the possible consequences of that application. The court should assess the immediate impact on the child against the prejudice caused to the parent and to the court’s ability to determine the substantive issue. A preliminary assessment or trial does not determine the child’s ultimate interests or predetermine any later application.

The parties had been involved in longstanding proceedings concerning contact with their seven-year-old son. The father sought permission to take the child to a voice trial at a cathedral school, where success might lead to a scholarship and a possible later application to change the child’s school. The mother opposed the trial, relying on the child’s stated reluctance, possible emotional harm, financial concerns and the wider history between the parents.

The court had previously directed that the father could take the child to the trial. On reconsideration, the issue was whether that direction should be discharged or whether the mother should be required to facilitate the trial.

1. Application refused. The court declined to revisit its earlier direction permitting the voice trial. The mother had been able to present her objections, had accepted advice concerning an appeal, and no appeal had been brought. The additional material and possible lack of understanding of financial consequences did not justify reconsideration.
2. The child’s welfare was the paramount consideration. The court accepted that a future application to change schools might ultimately lack merit and that the child’s best interests might not favour a change. Those issues had not yet been fully argued and were not determined by permitting the preliminary trial.
3. The mother’s response was disproportionate. There was no present application to change residence, and one short voice trial, even if it caused some initial minor apprehension, was not capable of undermining the child’s placement with the mother. Preventing the trial would substantially prejudice the father’s ability to pursue an application and the court’s ability to adjudicate between the parties’ competing positions.
4. The trial was an essential prerequisite if the father wished to pursue a school-change application. Its limited potential upset to the child was outweighed by the considerable potential disadvantage of preventing the father from obtaining the information needed to formulate that application.
5. The court directed the mother to make the child available for the voice trial and to take no steps to prevent the child’s attendance, including by informing the present school. The order was to take effect for notices given after 2.00 pm on 2 December 2005.