L (A Child)

A change of a child’s residence is not subject to a distinct or enhanced welfare test merely because it is described as a “last resort” or “draconian” remedy. The court must apply the paramountcy principle in Children Act 1989, conduct a comprehensive welfare analysis, consider the applicable matters in the statutory checklist, and determine which option best meets the child’s welfare needs.

A child must be heard, but the manner and degree of participation depend on the circumstances. The duty to ascertain wishes and feelings is qualified by the child’s welfare. A guardian may properly refrain from asking a direct question where doing so would cause emotional harm or would not reveal an ascertainable genuine view.

The appeal concerned an order transferring the primary home of an eight-and-a-half-year-old boy from his mother and maternal grandmother in London to his father and the father’s partner in Northern Ireland. The child had lived principally with his mother since his parents separated.

The first-instance judge had found that the child was being emotionally harmed by the continuing parental conflict and by the maternal household’s influence on his view of his father. The mother challenged the decision on three broad grounds: failure to ascertain the child’s wishes and feelings about the move; prematurity; and an insufficiently evidenced balance of harm. She also alleged procedural unfairness following the Children’s Guardian’s change of recommendation during the hearing.

1. Appeal dismissed. The order transferring L’s residence to Northern Ireland was upheld.

2. The phrase “last resort” does not impose a different welfare test. Although the court considered the reasoning in Re: A (Residence Order) and its context, excessive emphasis on that phrase risked diverting attention from the child’s welfare. The court had to apply the paramountcy principle in Children Act 1989, consider the relevant welfare-checklist factors, and decide where the welfare balance lay.

3. The judge was entitled to find that L was suffering continuing emotional harm in the maternal household and that the risk of further harm outweighed the inevitable disruption caused by moving home. The case was not confined to the mother’s conduct during the 10 working days after the Guardian’s report. It involved a six-year history of entrenched concern, the maternal grandmother’s central role, the earlier warning given by the judge, and the absence of material change.

4. The statutory requirement to consider the child’s ascertainable wishes and feelings did not require a direct question in every case. The child must be heard, but the method depends on age, understanding, circumstances and welfare. The Guardian was entitled to conclude that asking L to choose between parents would be emotionally harmful and would not produce a genuine ascertainable view. The judge was entitled to rely on that professional assessment and on the Guardian’s observations of L’s contrasting presentations.

5. The procedural complaints, including the late change in the Guardian’s recommendation and refusal of an adjournment, did not establish an unfair trial or render the decision unsafe. A finely balanced welfare decision was not thereby susceptible to successful appeal.

1. High Court (Family Division): On 8 April 2019, the appeal from the order of HHJ Tolson QC dated 3 December 2018 was dismissed. Arrangements were to be made for L to move to Northern Ireland.
2. Family Court: HHJ Tolson QC ordered the transfer of L’s primary home from the mother and maternal grandmother to the father and his partner.