C (A young person)

In determining child arrangements, the court’s paramount consideration is the child’s welfare. There is no presumption in favour of a natural parent or family member. The court must assess the child’s welfare interests by reference to the statutory welfare checklist and the child’s Convention rights.

Where parental conflict is likely to continue, the court may make complementary orders which preserve the child’s relationship with both adults. A child may live with one person while spending substantial and defined time with another who also has parental responsibility. An order under s.91(14) of the Children Act 1989 remains exceptional, although reserving future applications to the same judge may provide an appropriate protective filter.

The applicant father sought orders making C, a 16-year-old young person, a ward of court and placing her solely in his care, with him as the only person holding parental responsibility. C’s mother had died, and C had been living with her maternal aunt. A previous shared care order had been made in favour of the father and aunt.

By the final hearing, C was living with the father but remained closely attached to the aunt and the maternal family. The aunt opposed the father’s application, and C opposed sole parental responsibility being granted to him. The issues were the appropriate living and contact arrangements, the allocation of parental responsibility, and whether a restriction on further applications under s.91(14) of the Children Act 1989 was justified.

1. The court’s paramount concern was C’s welfare best interests under s.1(1) of the Children Act 1989. The court had regard to the welfare checklist under s.1(3), and to the Article 6 and Article 8 rights of C, the father and the aunt. Where the child’s Article 8 rights conflicted with those of an adult, the child’s rights prevailed: Yousef v Netherland [2003] 1 FLR 210.
2. There was no assumption in favour of a natural parent or natural family member. The decision had to be determined by C’s welfare best interests: Re H (A Child) [2015] EWCA Civ 1284, paras 89–94, and Re W (A Child) [2016] EWCA Civ 793, para 71.
3. The father’s relationship with C was fractured, while the aunt was an emotional and psychological parent whose relationship with C was crucial to her emotional and psychological wellbeing. The court therefore rejected the father’s proposed arrangement giving him sole parental responsibility. It made a child arrangements order for C to live with her father and to spend time with the aunt on at least three occasions each week. The frequency was a minimum, not a maximum.
4. Because a child arrangements order was made in favour of the aunt, parental responsibility was granted to her under s.12(2)(a) of the Children Act 1989. The combination of orders allowed C to continue rebuilding her relationship with her father while preserving the emotional security provided by the aunt and the maternal family.
5. The court declined to make a s.91(14) order. Such an order was extremely rare and unusual. Reserving future applications concerning C to the judge would provide an appropriate filter, but the parties were warned that unmeritorious further applications might lead to a future s.91(14) order.
6. The court declined to make orders concerning probate or the management of the mother’s estate, which were matters for the relevant probate office or probate judge.

First instance decision. No appellate history was stated in the judgment.