K-P (Children: Child Arrangements Order Appeal No 1), Re

Where a court is choosing between realistic child-arrangements options, it must weigh each option in the welfare balance and explain why the rejected option is not in the child’s best interests. Where a proposed change of residence may cause significant harm, the court must undertake an explicit balance-of-harm analysis. The importance of regular school attendance does not remove the need to assess the comparative harm and benefit of each realistic arrangement. A judgment must enable the parties to understand why the decision was made and why a reasonable and realistic alternative was excluded.

The mother appealed against an interim order made by HHJ Tolson KC transferring the residence of her 12-year-old daughter, P, from her care to the father’s care. The lower court had focused principally on P’s irregular school attendance and considered the father’s plan more likely to secure regular attendance. The mother had advanced two alternative plans involving therapeutic intervention and support for school attendance. The child’s NYAS guardian opposed the transfer and expressed concern about its short- and long-term impact.

The appeal concerned whether the lower court had adequately considered the mother’s realistic alternatives and the potential harm arising from the transfer of residence.

1. Appeal allowed. Permission to appeal was granted under Family Procedure Rules rule 30.3. Under rule 30.12(3), the decision below was wrong and the appeal was allowed. The order of 2 August 2024 was set aside pursuant to rule 30.11.
2. The lower court had treated the mother’s plans A and B as realistic options. It was therefore incumbent on it to weigh those options against the father’s proposed transfer of residence and explain clearly why they were not, overall and on balance, in P’s welfare best interests. It failed to do so.
3. The court was also required to undertake an explicit balance-of-harm analysis. It had to consider whether leaving P in her mother’s care or transferring her care to her father would cause the greater harm or produce the greater benefit. That analysis was absent.
4. The judge was right to attach considerable importance to regular school attendance. That consideration did not dispense with the need to analyse the effects of the proposed change of residence, particularly in light of the guardian’s opposition and concerns.
5. The matter was remitted for rehearing before another judge. Given that circumstances had developed since the original decision, it would be inappropriate for the appellate court to substitute its own decision.

• High Court (Family Division): Appeal allowed against HHJ Tolson KC’s order of 2 August 2024. The order transferring P’s residence to the father was set aside and the matter was remitted for rehearing before another judge.