Y (A Child: Private Law: Interim Change of Residence)

Interim alteration of a child’s residence in private-law proceedings requires the child’s welfare to remain the paramount consideration. The court must subject the application to close and stringent scrutiny and should order a change only for compelling reasons, where the child’s physical or emotional safety requires it. The more demanding public-law test for interim removal does not apply, although public-law authorities may provide useful parallels. A change may be justified where the existing arrangement exposes the child to serious emotional harm, undermines the child’s relationship with the other parent, or is no longer sustainable.

Following a fact-finding judgment, [2014] EWHC 486 (Fam), the court considered interim residence arrangements for a child aged one year and ten months, approximately six weeks before the final hearing. The mother opposed any change and sought continuation of the existing arrangement. The father, local authority and guardian supported an interim move to the father’s care.

The application arose after the mother repeatedly resisted unsupervised and overnight contact, continued to believe that the father had sexually abused the child despite the fact-finding judgment, and reported a series of largely unexplained injuries and other physical signs. The central issue was whether the child’s welfare required an immediate interim change of residence pending the final hearing.

1. Applicable approach. The child’s welfare was the paramount consideration. The public-law test for interim removal stated in [2009] EWCA Civ 822 did not apply because these were private-law proceedings. Nevertheless, the court treated close and stringent scrutiny, and the requirement for compelling reasons linked to the child’s physical or emotional safety, as appropriate safeguards.
2. Assessment of the existing arrangement. Leaving the child with the mother was not a viable option for the following six weeks. The mother had demonstrated an enduring inability to accept the findings that the father had not harmed the child and could not presently support the child’s relationship with him. Her beliefs were found to be without foundation and connected with psychological difficulties. The court considered that the child’s exposure to those beliefs and to the mother’s distress seriously threatened the child’s emotional development.
3. The mother’s refusal to permit overnight contact, together with the accumulating reports of bruising and other physical symptoms, created grave welfare concerns. The court considered that the overwhelming likelihood was that the injuries were not connected with sinister sexual interference by the father. The relevant concern was the deteriorating situation and the risk that the child’s relationship with her father would be undermined.
4. Decision. The court ordered that the child should live with the father until the May final hearing. The mother was to have supervised contact for three hours at least three times each week, subject to arrangements being adjusted in light of her presentation and the child’s welfare. The decision was supported by the local authority, guardian and other professionals involved in the child’s care.