Re C (A Child) (Parental Order & Child Arrangements Order No 3)

In determining child arrangements, the child’s welfare remains the paramount consideration. The court must assess the real risk of emotional and psychological harm arising from a parent’s conduct, attitude and proposed communications about the other parent. A child should ordinarily receive an honest, age-appropriate and progressively developed account of significant family circumstances, but arrangements must reflect the child’s welfare and the parents’ ability to provide consistent messages. Restrictions on parental responsibility require evidence that the parent has interfered, or is likely to interfere, with its proper exercise. A party’s perception that the judge is biased does not establish apparent bias; the question is whether a fair-minded and informed observer would consider that there was a real possibility of bias.

The proceedings concerned C, aged three, whose father was the applicant and whose mother was the first respondent. C had lived with his father since March 2020 and spent time with his mother. The mother also cared for C’s twin half siblings, P and Q, whose existence was unknown to C.

The court determined competing applications concerning where C should live, his contact with each parent, restrictions on the mother’s parental responsibility, and the timing and manner of C being told about and introduced to the twins. The mother also applied for the judge to recuse himself on grounds of apparent bias. The central issues were C’s welfare, the risk arising from the mother’s continuing allegations and conduct, and how his relationship with both parents and his half siblings should be managed.

1. Recusal. The application for recusal was dismissed. Applying the test in Porter v Magill [2002] 2AC 357, the relevant question was whether a fair-minded and informed observer would conclude that there was a real possibility of bias. The mother’s perception that the judge was biased, and the judge’s findings against her, provided no proper basis for recusal. The judge’s exchanges with counsel had not affected his assessment of the evidence.
2. Findings of fact. The burden rested on the party seeking a finding against another person. The standard was the balance of probabilities, applying Re B [2008] UKHL 35. The approach to alleged lies was governed by R v Lucas [1981] QB 720, as adopted in the family courts and explained in Re H-C (Children) [2016] EWCA Civ 136. A lie about one matter did not mean that the witness had lied about everything, and a lie could not itself constitute direct proof of guilt. The court found that the mother had repeatedly lied to the police and the court, had maintained false allegations against the father, and had not accepted the earlier findings concerning the second surrogacy or the father’s care of C.
3. Welfare and arrangements. Under section 1 of the Children Act 1989, C’s welfare was paramount and the relevant welfare checklist factors were considered. The child’s Article 8 rights prevailed where they conflicted with the Article 8 rights of a parent, applying Yousef v The Netherlands [2003] 1 FLR 210. C was safe, settled and well cared for by his father. Moving him to the mother’s care risked exposing him to false and negative views about his father and causing emotional harm. C was therefore ordered to live with his father.
4. During the mother’s chemotherapy, contact was to continue twice weekly by video call and thereafter revert to direct contact. The frequency, duration and supervision of contact would depend on the mother’s acceptance of the findings, her conduct after the police investigation, and the risk of harm to C.
5. C was to be given a simple and truthful account of his early life and the existence of the twins. The account could be developed as he matured. The father was directed to send the narrative to the mother for comments consistent with the court’s findings. The court expected C and the twins to meet around Easter 2022, but fixed no date. A Family Assistance Order could not be made without both parents’ consent.
6. The application to restrict the mother’s parental responsibility was dismissed. There was no evidence, or cogent evidence, that she had interfered with the father’s exercise of parental responsibility. Limited permissions were granted for disclosure of the judgments, summary, order and case papers to specified persons and organisations. The matter was to return after the CPS charging decision.