GO v EN & Ors

Intractable hostility by a non-parent carer cannot justify restricting a child’s relationship with a parent where the child’s welfare requires contact. The court must assess the child’s present and foreseeable welfare, including emotional harm, the effect of change, delay, and each carer’s ability to meet the child’s needs. An interim transfer of residence may be ordered without expert evidence where the evidence establishes that immediate intervention is proportionate and necessary to safeguard welfare. Sections 37 and 38 of the Children Act 1989 are focused powers. They may be used in private-law proceedings where there are reasonable grounds for believing that the child is suffering, or is likely to suffer, significant harm attributable to the care being provided.

The application concerned the residence and contact arrangements for a seven-year-old boy, B. He had lived with his half-sister, MN, since 2009 and had regular contact with his mother, GO. Earlier proceedings resulted in a residence order in favour of MN and visiting contact for the mother. On appeal, Wood J ordered interim overnight contact and directed that the case return for further consideration.

MN resisted the overnight contact and, on the findings made at this hearing, involved B in the dispute, threatened that he could not return if he stayed overnight, used corporal punishment, and obstructed further contact. The issue was whether B should remain with MN, whether the case should be adjourned for expert evidence and gradual transition, or whether immediate removal under sections 37 and 38 of the Children Act 1989 was required.

1. Welfare and contact. B’s welfare was paramount. His expressed hostility towards his mother was not treated as representing his true wishes and feelings because he had been subjected to inappropriate pressure. His emotional needs required the opportunity for a full and developing relationship with his mother. The court was particularly concerned that continued residence with MN created a real risk of further significant emotional harm.
2. The court applied the approach in Re A [2013] EWCA (Civ) 1104: a court should be very reluctant to allow implacable hostility to defeat contact where welfare otherwise requires it, and contact should be refused only where there is a serious risk of harm. The principle applied with greater force where the hostile person was not the child’s parent.
3. Expert evidence. The observation in Re S (Transfer of Residence) [2011] 1FLR 1789 that expert evidence is essential in every high-conflict alienation case was not treated as an unbreakable rule. Following Re H [2014] EWCA (Civ) 733, the question was whether the intervention was supported by evidence and proportionate to the need to safeguard B’s welfare. The evidence, including that of the experienced guardian, satisfied that requirement.
4. Sections 37 and 38. The facts provided reasonable grounds for believing that B was suffering significant harm, and would suffer further harm if he remained with MN. The statutory powers were available in private-law proceedings, but were not a universal solution. The court considered the consequences of removal, required a coherent care plan, avoided undue delay, maintained judicial continuity, and required the case to remain under review. The reasoning and safeguards identified in Re M [2003] EWHC 1024 (Fam) were applied.
5. An interim care order under section 38, together with a direction under section 37, was made. B was to be removed immediately into foster care as a temporary and neutral setting, with a plan for rehabilitation to the mother. Future contact with MN and the father was to be supervised and carefully monitored. The matter was ordered to return to the judge shortly.

• High Court (Family Division): Wood J set aside part of the earlier order and directed interim overnight contact. The present court subsequently determined the arrangements and made interim care and removal orders.
• Court of Appeal: permission to appeal Wood J’s decision was refused by McFarlane LJ on 19 June 2014.