JB v DJ

On an application to enforce a child arrangements order, the court must identify an actual breach of the order’s terms. Failure to achieve its broader purpose, or a parent’s lack of enthusiasm for contact, does not itself establish non-compliance. Any resulting change in residence remains a welfare decision and is not automatic merely because an order provides for it. The child’s welfare must be assessed holistically, including the substantial disruption and losses caused by relocation. Where a significant change of residence is sought, the child’s interests and views must be properly investigated. Reappointment of a children’s guardian may be necessary, particularly where the child’s circumstances have materially changed.

The father sought enforcement of a child arrangements order which provided for the child to move to live with him if contact arrangements were not implemented. The first-instance judge found substantial failure in the contact plan, no reasonable excuse, and ordered a transfer of residence from the mother to the father.

The mother appealed. She challenged the treatment of the matter as enforcement, the assessment of non-compliance, the failure to appoint a guardian, and the welfare analysis. The transfer had already occurred when permission to appeal was granted. The central issue was whether the residence decision had been reached through a lawful enforcement and welfare assessment.

1. Appeal allowed. The matter was remitted to the Family Court at Liverpool to be determined with, and wholly subsumed within, the pending welfare proceedings.

2. Under Children Act 1989, section 11J, enforcement involves two separate questions. The alleged non-compliance must be proved beyond reasonable doubt. If breach is established, the person concerned may still show on the balance of probabilities that there was a reasonable excuse.

3. The first-instance judge was entitled to determine whether the mother had breached the order. However, breach had to be assessed by reference to the order’s strict terms. The court must identify whether a required act occurred. A near-total failure to achieve the plan’s aims, a lack of enthusiasm for contact, or a parent’s negative opinion of the other parent does not, without more, constitute breach.

4. The order’s provision for transfer of residence did not make transfer automatic. The decisive question remained the child’s welfare. That assessment had to be holistic. It required proper weight to the child’s existing home, primary carer, school, friendships, family relationships, distress, and the consequences of moving to live with a parent with whom the child had spent little time.

5. The first-instance judge was wrong not to reappoint a children’s guardian under rule 16.2 of the Family Procedure Rules 2010. A guardian could have investigated the child’s welfare, obtained relevant information from the school, and ensured that the child’s views about the proposed wholesale changes were heard.

6. The errors were cumulative: excessive concentration on compliance, assessment against the order’s aims rather than its terms, failure to appoint a guardian, and failure to determine residence by holistic reference to welfare. The welfare application was therefore the appropriate vehicle for reconsideration.

• High Court (Family Division): appeal from the order of HHJ Malcolm Sharpe dated 3 August 2020 allowed. The matter was remitted to the Family Court at Liverpool for determination within the welfare proceedings.
• Permission to appeal: granted by Judd J on 26 October 2020.