H (Children)

Where children living primarily with one parent are retained by the other parent after staying contact, the principled order is their peremptory return. Retention may be justified only in exceptional circumstances suggesting significant harm if the children are returned. The secondary carer should alert the relevant authorities and make an urgent without-notice application. An interim change of residence requires a compelling welfare basis and should be made only where there is an emergency or it forms part of a proper strategy for the case. Existing care arrangements, settled routines and residence orders require careful weight.

Following agreed staying contact, the father retained two children in January 2007 instead of returning them to their mother, who had cared for them since the parties’ separation and held a residence order. The mother applied for their return. After delay, the matter was heard by HHJ Thomas at Wolverhampton County Court on 23 March 2007 on documents and submissions only. The judge discharged the mother’s residence order and made an interim residence order in favour of the father, relying principally on the delay in obtaining a CAFCASS report and the father’s untested complaints. Permission to appeal was refused below. The central issue was whether the interim change of residence was justified and whether the children should instead have been returned promptly to the mother.

1. The Court granted permission to appeal and allowed the appeal. The children were to return to the mother if that could be arranged that day.
2. Mr Justice Coleridge held that the circuit judge applied the wrong principles. The judge failed to give sufficient weight to the children’s established care by their mother, their settled home and school routine, the existing consent residence order and the earlier fact-finding judgment. The father’s allegations were untested and unsupported by proper evidence. The child’s dental abscess, which the mother had already been investigating, did not justify retention or an interim transfer of residence.
3. An interim change of residence should not be made unless there is a really compelling welfare reason. The principle identified in Re K Family Proceedings Rules [2005] 1 FLR 764 was that such a change is justified only if it is in the child’s interests and there is an emergency, or if it forms part of a proper strategy for the overall conduct of the case. Neither basis was established.
4. Lord Justice Thorpe agreed. Where a parent with staying contact wrongfully retains children who are in the primary care of the other parent, peremptory return is the principled order. An exceptional case may arise where events during contact indicate a risk of significant harm on return. In that situation the retaining parent must alert the relevant authorities and issue an urgent without-notice application.
5. The Court criticised the delay in bringing the matter before a judge. Practitioners and county courts should be able to place comparable emergency applications before a judge on the same day where circumstances require it.

1. Court of Appeal (Civil Division) Permission granted and appeal allowed; the children were ordered to return to the mother if practicable.
2. Wolverhampton County Court On 23 March 2007 HHJ Thomas discharged the mother’s residence order and made an interim residence order in favour of the father. Permission to appeal was refused.