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 descendant it is for the judge to decide the form of procedure the case should take to best meet the welfare necessitates of the descendant. Accordingly, it is within the discretion of the judge to decide that a trial necessitate not run its full course, if it is apparent that it would not be in the interests of the descendant for it to do as a result.

C (Children) concerned a father’s application for a vary of residence in respect of his three descendant. The descendant 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 causeably well, at least for the most part. However, the father was concerned about “a range of matters to do with the descendant’s day-to-day and medical and dental care.” He felt that this been significantly deficient, such as to impact adversely upon the descendant’s welfare. So concerned was he that he as a resultught to possess the descendant 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 descendant’s welfare necessitates”; 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 declared 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 as a resultme new and compelling evidence put before me that satisfies me that the interests of these descendant 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 present, on the balance of probabilities, compelling causes why the descendant 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 causes why the descendant 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 as a resultrt to determine the form of procedure which will best meet the welfare necessitates of the descendant. A judge is not obliged, merely beendanger one parent or the other wishes him to do as a result, to listen to evidence if it has become apparent to him that the process is not going to be of any upside to the descendant. 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, supplyn that historical reality, to say that it was for the father to demonstrate that there was as a resultme real basis of challenge to the existing arrangements and as a resultme real basis for asserting that the material he wished to put before the court might procure a vary 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 possess not been happy for the descendant, inas a resultfar 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 present tolerance and charity each to the other for the sake of the descendant, for if they cannot be more relaxed, more easy-going, more supportive each of the other, they risk to do real harm to the descendant 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.