M (Children)

In determining children’s welfare, the court must assess their wishes and feelings in context and distinguish genuine preferences from views shaped by loyalty, pressure or parental influence. A parent’s persistent failure to promote contact may make an ordinary contact order ineffective. Where continued residence with that parent would deprive the children of important family relationships, a conditional transfer of residence may be ordered if the court can identify clearly the circumstances in which it will take effect. The court must weigh short-, medium- and long-term consequences, including the losses and risks caused by a move. Children’s expressed opposition does not determine the outcome where their welfare requires restoration of family relationships and compliance with court orders.

The father applied for the transfer of residence of his two sons, aged ten and eight. The mother, their longstanding main carer, opposed the application and sought further contact arrangements. The children had become strongly opposed to seeing their father after prolonged parental conflict, repeated failed contact arrangements and the mother’s removal of the family from Blackpool to Devon.

Earlier contact orders had repeatedly failed. The Children’s Guardian could not recommend confidently whether a change of residence would succeed, but considered that contact was unlikely to occur while the existing arrangements continued. The central issue was whether the children should remain living with their mother, subject to further contact attempts, or live with their father in order to restore their relationship with him and his wider family.

1. Residence and contact. The father’s application for a residence order succeeded. The order was conditional for eight weeks. The children were to have two ten-day periods of staying contact with their father during the summer holidays. If either period failed, they were to live with their father from the first date of that period. The father could restore the application if later contact failed.
2. The children’s welfare was paramount. The court carefully analysed the welfare factors and considered the short-, medium- and long-term consequences of each realistic option. A simple contact order had repeatedly failed and would not restore the children’s relationship with their father while the mother’s attitude remained unchanged.
3. The children’s stated wishes and feelings had to be taken seriously but could not be treated as determinative. The court distinguished between genuine wishes and statements made under the influence of loyalty to one parent. The children’s resistance was found to reflect the mother’s expectations rather than their true feelings, and their welfare required guidance rather than abandonment of their relationship with their father.
4. A transfer of residence involved substantial losses and risks, including separation from the mother and half-siblings and possible difficulty settling with the father. Those considerations were outweighed by the long-term harm of depriving the children of essential relationships with their father and wider family. The father was found capable of meeting their needs and likely to support their relationship with their mother.
5. The mother’s failure to promote contact, including bringing the children without belongings and permitting them to refuse or evade handovers, meant that the court could not rely on further ordinary contact directions. The conditional order gave her one final opportunity to support contact while protecting the children’s longer-term welfare.
6. If recovery of the children became necessary, an application was to be made under Family Law Act 1986, s.34. No order for costs was made, save for detailed assessment of each publicly funded party’s costs.

First-instance decision. No appellate history is stated in the judgment.