E-R (Child Arrangements)(No.2)

Child arrangements must be determined by the child’s welfare and the statutory welfare factors. A parent’s biological relationship is important but does not create an automatic entitlement to primary care or unrestricted contact. The court must assess the practical and emotional consequences of proposed arrangements, including the child’s established attachments, stability, wishes and feelings, and each adult’s capacity to provide reliable, child-focused care. Contact may properly be graduated and limited where previous conduct has damaged trust or caused distress. A private-law review should not be ordered merely to supervise hoped-for improvement; the exceptional circumstances identified in the relevant practice direction must be established.

T, aged eight, lived with family friends following her mother’s death. In April 2016 the court made a child arrangements order providing for T to live with them and to spend specified periods with her father. The arrangements were repeatedly breached or cancelled, and the father later sought primary care, a warning notice, and continued contact. The carer applied for further directions and variation of the arrangements. The court considered T’s welfare, her relationship with her father, the effect of adult conflict, the reliability of the proposed carers, and whether a future court review was appropriate.

1. The father’s request for transfer of T’s primary care was rejected. Under the Children Act 1989, the controlling consideration was T’s welfare, assessed by reference to the statutory welfare factors. Her established home, continuity of care, psychological attachments, emotional vulnerability and the practical deficiencies in the father’s proposal weighed decisively against a move.
2. The father’s biological relationship with T was recognised, but it did not determine where she should live. The court assessed future contact by reference to the adults’ ability to honour arrangements and provide child-focused experiences. T loved her father and wished to see him, but her trust had been damaged by breaches, cancellations, deception and adult hostility.
3. Contact was therefore varied. It was to be monthly contact with the father alone in Cornwall, initially for four hours and capable of extension if successful. Contact with Miss B was to be indirect until T wished otherwise. Telephone contact was reduced to once weekly, with safeguards concerning confirmation, handovers, cancellation and removal from Cornwall.
4. The application for a warning notice was rejected because the April 2016 order already contained one. The court additionally found that the father had principally caused the failure of the arrangements and had not shown a reliable commitment to future contact.
5. Allegations were determined on the civil standard of proof, applying Re B [2008] UKHL 35. The alleged attic detention, assault and administration of sleeping tablets were not proved. The court rejected the allegation that T had been alienated by the carer.
6. A court review was refused. The limited circumstances for review in private-law cases under PD12B, para 15 of the Family Procedure Rules 2010 were not established. The parties were instead expected to attend mediation, conciliation or family therapy.

This was a first-instance decision following the earlier child arrangements order made by the same court in April 2016. The judgment does not describe an appeal.