TB v DB

In determining arrangements for a child, the child’s welfare remains the court’s paramount consideration under Children Act 1989, section 1(1). The welfare checklist must also be considered. Existing shared residence arrangements may properly be replaced where the risks of maintaining them, including disruption to the child’s relationship with a parent and potential emotional or psychological harm, outweigh the risks of changing residence. The court may give substantial weight to a guardian’s assessment that a young child can adapt to a change of home and school. The child’s Article 8 interests prevail where they conflict with those of a parent.

The father applied for the discharge of an existing shared residence order concerning the parties’ five-year-old child and sought sole residence, with contact for the mother. The mother sought continuation of the shared residence arrangements. The application followed fact-finding findings that serious allegations made by the mother against the father and a paternal relative were false and formed part of a campaign that disrupted the child’s relationship with his father.

The central issue was whether continuation of shared residence or transfer of the child’s primary residence to the father best served the child’s welfare.

1. The court’s paramount consideration was D’s welfare under section 1(1) of the Children Act 1989. The court also considered the factors in the welfare checklist under section 1(3) and the Article 8 rights of the parents and child. Where those rights were in tension, the child’s rights prevailed, applying Yousef v The Netherlands [2007] 1 FLR 210.
2. Shared residence would, if workable, preserve D’s existing school, friendships and relationships with both parents. Changing residence carried risks, including anxiety, difficulty settling at a new school and disruption to established friendships.
3. Those risks were outweighed by the risks of maintaining the existing arrangements. The mother’s sustained false allegations had involved D in serious matters and risked causing increasing emotional and psychological harm. The judge had little confidence that protective or prohibitory orders would prevent repetition or circumvention of the arrangements.
4. The Children’s Guardian considered D sufficiently young and adaptable to change residence and school without medium- or long-term harm. The judge accepted that recommendation and considered it preferable to make the change while D was young rather than defer it.
5. The shared residence order was therefore discharged. Sole residence was granted to the father, with contact orders in favour of the mother. The father was to choose D’s new school.