A (Children)

Transfer of residence from an obstructive primary carer to the other parent is a remedy of last resort. The court must balance the risks of moving the children against the risks of leaving residence unchanged, subject to a clear and detailed contact order. A late change in the primary carer’s position should be tested for sincerity, but that assessment is not the decisive issue. Where no defined contact order has been breached, the court should proceed with particular care. A residence transfer may be premature where a robust contact order can manage the identified risks, while making clear that continued non-compliance may justify transfer later.

The mother was the primary carer of three children. Following fact-finding proceedings, the Recorder found that both parents had contributed to a volatile relationship which had harmed the children. The father had had no effective contact for about 17 months. Shortly before trial, the mother changed her position and indicated that she would support generous contact, but the Recorder rejected the change as unreliable and made a residence order in favour of the father on 25 September 2009.

The mother appealed, arguing that the Recorder had treated the reliability of her change of position as the crucial issue instead of balancing the risks of transferring residence against the risks of maintaining residence with her while imposing a firm contact regime.

Appeal allowed. The residence order was dismissed and replaced by a defined contact order based on the children’s guardian’s proposals, with a minor adjustment to the timetable.

1. The Recorder’s findings of fact and assessment of the evidence were careful and were not criticised. The error lay in identifying the mother’s true position as the crucial issue. Her sincerity was important, particularly because her change of position occurred late in the litigation, but it was not decisive.
2. The central question was the risk balance. The court had to assess the risks of moving the children from their primary carer, after many years of care and a lengthy period without effective contact with the father, against the risks of leaving residence with the mother while imposing a clear and detailed contact order.
3. Transfer of residence is a judicial weapon of last resort. In the circumstances, the risks of future gamesmanship by the mother, if residence remained with her but contact were firmly ordered, were plainly less than the risks of transferring residence. The Recorder had therefore gone too far too soon.
4. Mr Justice Coleridge, concurring in the result, emphasised that the mother had not breached a defined contact order and that her future response to court orders was therefore unknown. Any apparent change of heart required careful testing before deploying the last-resort remedy.

The mother was warned that she must comply with both the letter and spirit of the contact order. If she failed to do so, the children’s primary home would move to the father on a subsequent occasion.

1. Court of Appeal (Civil Division): On 7 October 2009, the court allowed the appeal, dismissed the residence order and substituted a defined contact order.
2. Dewsbury County Court: Mrs Recorder Armitage made a residence order in favour of the father on 25 September 2009.