Robust approach to father’s change of residence application

family law

Continuing what is becoming a series on old cases newly published on Bailii I now turn to the 2012 Court of Appeal case C (Children).

As Lord Justice Munby, as he then was, explained in his leading judgment, C (Children) demonstrated that in proceedings concerning children it is for the judge to decide the form of procedure the case should take to best meet the welfare needs of the children. Accordingly, it is within the discretion of the judge to decide that a trial need not run its full course, if it is clear that it would not be in the interests of the children for it to do so.

C (Children) concerned a father’s application for a change of residence in respect of his three children. The children had been living with the mother, in accordance with a residence order made in 2008. The father had been having contact, and it appeared that that had essentially been proceeding reasonably well, at least for the most part. However, the father was concerned about “a range of matters to do with the children’s day-to-day and medical and dental care.” He felt that this been significantly deficient, such as to impact adversely upon the children’s welfare. So concerned was he that he sought to have the children reside with him.

The matter went before His Honour Judge Cliffe, in the Bradford County Court. He directed the father to file a schedule of the facts which he intended to prove, giving details and dates of the incidents, and directed that the mother file her response.

The father’s schedule set out allegations under six headings: “Missed medical appointments”; “Inappropriate child care not commensurate with the children’s welfare needs”; an allegation of non-accidental injury (albeit with no suggestion that the mother was responsible); verbal and physical assaults by the mother; blocked contact; and the mother’s alleged inadequate parenting. The mother’s response was detailed, going far beyond bare denials, and setting out “a detailed refutation of the father’s complaints”.

The matter then went back before Judge Cliffe for hearing, on 16 April 2012. Judge Cliffe listened to the father’s evidence for one and a quarter hours, and then brought the proceedings to an early conclusion. He said that he had no jurisdiction to overturn the residence order in favour of the mother “unless there is some new and compelling evidence put before me that satisfies me that the interests of these children require them to move from the principal carer, the mother, who has always been the main carer, to live with their father”. However, the father had “singularly failed” to show, on the balance of probabilities, compelling reasons why the children should move. In fact, he had failed to prove any of his six allegations. Accordingly, the father’s application for a residence order was dismissed.

The father appealed, complaining that the judge had fallen into error in stopping the proceedings at that stage, and suggesting “that the test which Judge Cliffe applied when he formulated the task facing the father as being “to establish, if he could, that on the balance of probabilities there were compelling reasons why the children should be moved” set the bar inappropriately high as a matter of law.” Tellingly, though, the father accepted that he had not been able to prove his allegations himself, but was confident that he could establish them if only he was able to cross-examine the mother.

Lord Justice Munby did not consider that Judge Cliffe had fallen into error, on either point. As to stopping the proceedings early, he said:

“It is pre-eminently a matter for the trial judge in a case of this sort to determine the form of procedure which will best meet the welfare needs of the children. A judge is not obliged, merely because one parent or the other wishes him to do so, to listen to evidence if it has become apparent to him that the process is not going to be of any advantage to the children. That was the view Judge Cliffe took. It was a robust view, but it is quite impossible, in my judgment, to assert that the judge, in taking that view and adopting that approach, exceeded the generous ambit of discretion which the law conferred upon him as the trial judge.”

As to the test which faced the father, he said that there had been no error of law, and that: “it was entirely appropriate for the judge, given that historical reality, to say that it was for the father to demonstrate that there was some real basis of challenge to the existing arrangements and some real basis for asserting that the material he wished to put before the court might lead to a change in the residence order.”

Accordingly, he said, the father’s appeal should be dismissed.

Lord Justice Thorpe agreed, and added his version of what has become the usual judicial exhortation to warring parents:

“The past few years have not been happy for the children, insofar as they know that their parents are engaged in court warfare, and there is another ten years [to go], or eleven if you count the years to the minority of the youngest. So I do appeal to [the parents] to show tolerance and charity each to the other for the sake of the children, for if they cannot be more relaxed, more easy-going, more supportive each of the other, they risk to do real harm to the children in the long run.”

Words with which Lord Justice Munby entirely concurred.

The full report of the case can be found here.

Photo by Brett Burnes via Flickr under a Creative Commons licence.

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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Paul - July 17, 2017 at 6:11pm

Sickening. The father has raised serious concerns about the childrens welfare and they will not even hear the man in court. They just dismiss it. If it was the other way round that would be stopped contact without even hearing the mans explination. How you can discribe this as a ‘justice’ system is some kind of sick joke. The woman could have let the kids teeth turn black and fall out and the father would still not be able to get it to court.
This system sickens me. Im ashamed of our brittish legal system. It is predudicial beyond embarassment.

spinner - July 17, 2017 at 7:20pm

It really is a joke, before I got involved with the family law system, not by choice obviously, I had a healthy respect for the British legal system but after seeing it from the inside it really is a joke and even though it claims to always put the best interest of the children ahead of everything else it clearly doesn’t.

TC - July 17, 2017 at 9:21pm

It clearly states that the father was unable to provide *any* proof of the allegations he made. The father stated that he would only be able to prove the allegations via cross examination. Why is that? I would be interested to know what their relationship was like and the reasons behind the divorce. I suspect he felt he would “win” via intimidation.

spinner - July 18, 2017 at 2:34pm

Or more likely she was lying and so under cross examination, he would be able to show the inconsistencies. If you have ever been cross examined it is meant to be intimidating, if it was a casual conversation then it wouldn’t be called a cross examination.

Paul - July 18, 2017 at 3:52pm

How sexist. You mean because she is a woman she does not have the strenght of character to answer questions underoath.
Why do we not just make a blanket ban on women taking to the witness box at all ??? So much for equality. This is a shameless joke.
If the woman has been lying through her back teeth then she absololutley should have the courage of her convictions and do so on the stand.
If the man is displaying intimidation during cross examination then she has the protection of the court and he would not be doing his own case many favours infront of a judge.
What this case is really about is that he cant afford a soliciter so he would have to cross exine himself. So hes not paying a leagal professional so he will get no fair hearing.
Industrial action by the bar who want legal aid ‘Solicters benefits’ re-enstated.
This is a national disgrace. Brings shame on this country.

Peter Davies - July 18, 2017 at 9:39am

There is a strong tendency amongst legal bloggers, commentators, family law textbook writers, the Daily Mail and many others to lazily and inaccurately cast any private law dispute that arrives at court to be between ‘warring parents’. It is a nasty mischaracterisation of, pejorative and offensive to the many parents that go to court as an absolute last resort having exhausted every possible avenue to communicate and cooperate in carrying out their parental responsibilities only to be greeted with a wall of silence or the threat of an injunction unless they, ‘shut up and do one’.

Rather than issue paternalistic exhortations which reinforce the popular stereotype that the judiciary are ‘divorced from the real world and out of touch’ it might be more empathetic, helpful and constructive if the collective wit and deep reservoir of intellectual judicial talent could be applied to solving, what for many is, a real, persistent and deeply frustrating problem.

Having got that off my chest I fail to understand why, if the dad in this case was so concerned, he did not simply arrange dental and medical appointments himself and take his kids along? Apart from ensuring that his kids were properly cared for this would also provide evidence to coroberate any future allegations that the mother was not doing her job as the main carer.

Paul - July 18, 2017 at 4:49pm

We don’t know that he didnt do exactly that. If he has observed his expartner not full filling her role proparly then why should he not file ? – plenty of women have filed for far less than this and been awarded custody. I think he has done the right thing and been dissmissed by the courts without fair hearing. He is entitled to have his concerns heard.
The judiciary ARE out of touch with the real world. Or rather they think they are above it and can do what they like disreguarding people at will who disagree with them

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