L v L (Child : Arrangements Following Treatment)

When deciding whether to make a child arrangements order, the court must ask whether making the order would be better for the child than making no order. The statutory welfare checklist remains central, including the child’s wishes and feelings assessed by reference to age and understanding. Those wishes do not carry precedence over other welfare factors and may be overridden where necessary to protect long-term welfare. In an unusual case, an anticipatory order may be justified where certainty about future living arrangements is itself necessary for the child’s welfare. The court may make flexible directions and conditions under section 11(7) of the Children Act 1989, but cannot impose obligations on persons outside the statutory categories or achieve indirectly what the substantive order cannot provide.

The father applied under the Children Act 1989 for child arrangements orders concerning N, a 14-year-old detained in hospital under section 3 of the Mental Health Act 1983 for anorexia nervosa and severe depression. He sought an order that N live with him after discharge and spend time with her mother. The mother opposed any immediate order, arguing that N’s future welfare could not yet be assessed and that N wished to live with her. The Children’s Guardian supported the father’s application. The central issues were whether an order should be made before discharge, how N’s wishes and feelings should be weighed, which parent could better meet her needs, and whether contact and schooling could be determined at that stage.

1. Outcome. The court made a child arrangements order that N should live with her father upon discharge and spend time with her mother subject to directions and conditions. It declined to make an order concerning N’s schooling.
2. Section 1(5) of the Children Act 1989 requires the court to ask whether making an order would be better for the child than making no order. It creates no presumption either way. An order may be justified where it provides needed security about arrangements (Re G (Children) [2006] 1 FLR 771; B v B (A Minor)(Residence Order) [1992] 2 FLR 327).
3. N’s wishes and feelings were important but were not determinative. They had to be assessed in light of her age and understanding and alongside the other welfare factors. Her wish to live with her mother was substantially influenced by an inappropriate sense of responsibility for her mother’s wellbeing. The court therefore gave greater weight to the need for certainty, recovery and protection from harm than to the expressed preference (Re P-J [2014] 2 FLR 27; Re P (Minors)(Wardship: Care and Control) [1992] 2 FCR 681; Re A (Intractable Contact Dispute: Human Rights Violations) [2014] 1 FLR 1185).
4. The evidence showed that the father, supported by his wife, had the greater present capacity to meet N’s physical and emotional needs. The mother’s serious and longstanding difficulties created a risk that N would again assume an inappropriate caring and emotional-support role.
5. Section 11(7) permitted directions and conditions regulating the implementation of the order and the nature of contact, including consultation and safeguards relating to the mother’s health and psycho-education. The power could not bind CAFCASS or a local authority, or be used to obtain a result unavailable under the substantive order (Leeds County Council v C [1993] 1 FLR 269; Re D (Residence: Imposition of Conditions) [1996] 2 FLR 281; Re A (Suspended Residence Order) [2010] 1 FLR 1679; Re O (A Minor)(Contact: Imposition of Conditions) [1995] 2 FLR 124).