H (A Child), Re

A child’s wishes and feelings in an interim residence dispute must be taken into account, but they are not automatically determinative. The court must also consider whether the proposed arrangement is workable in light of the child’s age, understanding, strength of feeling and likely practical consequences. An appellate court may exceptionally overturn an interim order where fuller, up-to-date material shows that immediate return is unrealistic and risks greater harm. Interim decisions ordinarily remain matters for the trial judge’s discretion. Where circumstances change, the usual course is to seek variation from that judge. The resident parent must take active steps to preserve the child’s relationship with the other parent.

Following the breakdown of the parents’ marriage, H lived with her mother while the father had contact. The father later collected H from the mother’s home, after which H remained with him and expressed a strong wish to live there. The mother obtained an interim residence order requiring H’s immediate return. HHJ Hollis made that order at Brighton County Court on 25 March 2011, pending a final residence hearing.

The father sought permission to appeal and a stay. By the hearing in the Court of Appeal, further material was available, including H’s communications, a police officer’s account and updated evidence from CAFCASS. The central issue was whether H should be returned immediately despite her strongly expressed wishes and the practical risks identified by the new evidence.

Lady Justice Black gave the leading judgment. Lord Justice Pitchford and Lord Justice Ward agreed.

1. Appeal allowed. The interim order requiring H’s immediate return to her mother was overturned. The Court of Appeal had substantially more information than the county court judge, including evidence that H’s wish to live with her father was persistent and so strong that immediate compliance appeared practically unrealistic.
2. The county court judge had correctly recognised that he was not obliged simply to do what H asked, but was required to take her wishes and feelings into account. He had done so. The difficulty was that the additional evidence made clear the practical force of those wishes and the risk that forcing H to return would cause further harm, including the possibility that she would run away.
3. An interim residence decision is ordinarily a matter for the discretion of the judge hearing the case. Interim appeals are therefore unusual. If circumstances develop after the order, the normal course is to return to the original judge seeking variation, since the Court of Appeal is generally not equipped to make front-line decisions about children. This case was exceptional because the fuller evidence disclosed a real risk that immediate return would be unworkable and harmful.
4. Lord Justice Ward emphasised that both parents remained important to H. The father had primary responsibility to encourage and ensure the restoration of H’s relationship and contact with her mother. The court also contemplated that CAFCASS should represent H independently in the continuing proceedings and that she should be joined as a party.

1. Court of Appeal (Civil Division) granted permission to appeal, heard the matter substantively and allowed the appeal.
2. Brighton County Court HHJ Hollis made an interim residence order requiring H to return immediately to her mother pending the final residence proceedings.