S (A Child), Re

In child-arrangements enforcement, an appellate court may intervene where the trial judge’s chosen method of transferring residence is shown to be wrong. The court should select a proportionate route directed to welfare and capable of reducing confrontation while preserving effective enforcement. A staged foster placement may be ordered as a short stepping-stone to final transfer, with a fixed duration and detailed contact directions. A child represented by a Rule 9.5 guardian will not ordinarily need a second litigation team in private-law proceedings; separate representation is exceptional and requires proportion. Evidence of possible self-harm must be sufficient to engage Article 2. Compatibility of Tipstaff powers under the Family Law Act 1986 with Article 5 was left undecided, although the Article 5(b) exception was considered arguable.

After a decade of family proceedings concerning contact between A and his parents, HHJ Bellamy ordered on 4 January 2010 that residence should transfer from the mother to the father. On 3 March 2010 he rejected a short foster placement and directed that the transfer be effected by the Tipstaff if the mother did not carry it out. The child’s guardian appealed, supported by the mother and the local authority. The appeal raised issues concerning the child’s representation, alleged life-threatening self-harm, and the use of Tipstaff powers. The local authority also argued that the judge had preferred generalised expert advice over more recent evidence. The central issue was whether immediate enforcement was a proper exercise of discretion or whether a staged transfer better served A’s welfare.

The appeal was allowed. The Court of Appeal held that the judge’s choice of immediate Tipstaff transfer had been demonstrated to be wrong. A less confrontational stepping-stone arrangement was substituted.

1. Representation: A was effectively represented by his Rule 9.5 guardian. In private-law proceedings, a second litigation team for the child is not ordinarily justified. In hybrid proceedings, independent representation in addition to guardian representation remains exceptional under Rules 4.10 to 4.12. Proportionality is required, particularly where there is no evidence of divergence.
2. Human-rights arguments: The evidence that A might stop eating, run away or jump from his father’s car fell far short of the evidential case needed to engage Article 2 in respect of life-threatening self-harm. The Article 5 issue did not need to be decided. The court observed that the Tipstaff’s role might involve little arrest or detention and that even forceful intervention was strongly arguable to fall within the exception in paragraph (b).
3. Discretion and implementation: The welfare analysis required attention to the child’s resistance, the risk of confrontation, the mother’s ability to support the move, and the difference between recent direct evidence and generalised professional advice. The court could impose a time limit on the interim care order and give specific contact directions under section 34 of the Children Act 1989.
4. Orders: A was to move to foster carers for 21 days, with the transfer to the father completed at the end of that period. The father was permitted prolonged contact during the transition. The mother’s contact was limited to supervised landline telephone calls of no more than five minutes, which had to support the transfer. The review before HHJ Bellamy on 25 March was retained, with difficulties remitted to him.

• Court of Appeal (Civil Division): On 17 March 2010, the appeal was allowed. The immediate Tipstaff transfer was replaced by a 21-day foster placement followed by transfer to the father, with the matter remaining before HHJ Bellamy for review.
• Coventry County Court: HHJ Bellamy’s order of 3 March 2010 rejected a short-term foster placement and directed transfer by the Tipstaff if the mother failed to effect it. It followed the residence-transfer order made on 4 January 2010.