C (a child), Re

In a difficult child-residence case, the child’s welfare remains paramount. The court must address the welfare checklist and any other relevant considerations, but a judgment need not mechanically recite each factor if it shows that they were considered expressly or by implication. This accords with the guidance in Re G (Children) [2006] UKHL 43. A change of residence may be ordered immediately where a resident parent’s intractable opposition makes a phased restoration of contact impossible. The court may balance inevitable short-term distress against the risk of longer-term emotional harm from persistent denial of contact and social isolation. A decision to make no order must not become an abdication of responsibility. Appellate intervention is justified only where the welfare decision is plainly wrong or outside the permissible range.

The parents of a young child separated when she was an infant. Contact with the father subsequently ceased, and the mother repeatedly failed to comply with contact orders. Following findings of intractable hostility and concerns about future emotional harm, HHJ Lowden in the Newcastle-upon-Tyne County Court ordered the child’s immediate transfer of residence from the mother to the father, with reasonable contact to the mother.

The mother appealed, arguing that the judge had failed to apply the welfare checklist, had given insufficient weight to the distress and disruption caused by the transfer, and had failed to consider alternative orders. The Court of Appeal granted permission urgently. The central issue was whether the residence decision was plainly wrong or outside the range of decisions open to the judge.

1. Disposition. The appeal was dismissed. The stay of execution was refused. The matter was to be restored to HHJ Lowden for consideration of outstanding questions concerning contact, therapy and possible family assistance.
2. Welfare checklist and reasoning. The judge had properly treated the child’s welfare as paramount and had considered the factors in section 1(3) of the Children Act 1989. Applying the guidance in Re G (Children) [2006] UKHL 43, the Court of Appeal held that the judgment, read fairly, contained express or implied findings on the relevant factors. It was not necessary for every factor to be discussed in formulaic terms.
3. Balancing the evidence. The judge was entitled to balance the inevitable distress of an immediate move, the child’s strong bond with her mother, her involvement with her half-brother and her limited current relationship with her father against the risk of longer-term emotional harm if contact continued to be denied and the child remained socially isolated. Expert and guardian evidence supported the conclusion that future harm was a real risk, although the mother’s threat to end contact after a transfer was not treated as certain.
4. Residence and contact orders. The mother’s persistent hostility made cooperation with a phased handover unrealistic. In those exceptional circumstances, an immediate transfer of residence was within the range of lawful welfare decisions, despite its drastic and distressing character. A defined contact order was also unrealistic where the mother was asserting that she wanted no contact. The judge was entitled to reject a further offer of contact as unreliable.
5. Appellate restraint and ancillary orders. The judge was entitled to reject making no order, since that would have left the child exposed to continuing harm when transfer of residence was a realistic option. The Court of Appeal declined to impose therapeutic or family assistance orders itself because consent and adequate information about local provision were unavailable.

• Court of Appeal (Civil Division): permission to appeal was granted urgently. The appeal was dismissed and the stay of execution was refused. The case was restored to the trial judge for consideration of outstanding support and contact arrangements.
• Newcastle-upon-Tyne County Court: HHJ Lowden ordered the child’s immediate change of residence from the mother to the father, with reasonable contact to the mother.