It is important to remember that it is the children who are the heart of the decisions made by the family courts and the potential long-term impact there can be for children who are caught in the middle of parental conflict.
This is evident in a recent case Re Boy A and Another D V D  EWFC 164.
Recorder McKendrick QC recently considered the case of Re Boy A and Another D v D. The case concerned two boys who were aged 11 and 8 at the time. There was an existing order, made in 2018, which stipulated that the parents should have shared care of the children, with the children spending alternate weeks with the mother and the father. In period after that order was made and these proceedings, the mother purchased a house in Somerset, whilst still renting a property in London. The mother wanted the children to move to Somerset with her.
The father therefore made an application to the court on 1 December 2021 for a prohibited steps order to prevent the mother from moving to Somerset and a child arrangements order for the children to live with him in London and to spend time with the mother.
The mother made a cross application for a specific issue order and child arrangements order for permission to relocate with the children to Somerset and provision for them to spend time with their father in London.
The court decided that it was not in the children’s best interests to relocate to Somerset. The court ordered that the children would continue to spend alternate weeks with the mother and father in London and that they could spend time in Somerset with their mother during the school holidays and on occasional weekends.
The mother was heavily criticised for posting a petition online about the case, with a picture of herself on the web page. The petition also clearly identified the children and set out some of the information to do with the proceedings. The information had been shared with some parents at one of the boy’s school and a professional working with one of the boys. The judge was emphatic about how inappropriate this had been and that it was not in the children’s best interests to be publishing information about their lives in this way.
Information relating to children proceedings is subject to strict rules on publication, and a breach of those rules can amount to contempt of court. Whilst there is an ongoing pilot project to look at changing the rules in relation to publication of information in children proceedings, the court will not tolerate parents taking matters into their own hands by publishing information in contravention of the existing framework.
The court makes decisions in children proceedings by reference to the welfare checklist, which can be found at Section 1 of the Children Act 1989. These criteria include the ascertainable wishes and feelings of the children. Ordinarily it is the role of Cafcass to speak to the child to obtain their wishes and feelings, but the court has discretion to place more or less weight on what a child says, depending on the individual circumstances of the case.
The court noted that both the boys had indicated to the Cafcass officer that they would like to go and live with their mother in Somerset but it was concerned about how much influence the mother had on the boys when they formed that opinion. The Cafcass officer noted that they had been subject to significant influencing by their mother, from what she had told them and from her actions. For example, the court noted that the mother undermined the one of boys’ confidence in his personal safety in London by being unfairly negative about his secondary school in London and its location.
Another element of the welfare checklist is any harm that the children have suffered or are at risk of suffering. Harm is defined as being the “ill treatment or the impairment of health or development”. In this case the court decided that the relocation to Somerset was not in the children’s best interests because they would be a risk of emotional harm as a result of the mother’s lack of capability to prioritise the children’s need to have their relationship with their father nurtured and strengthened. The judge decided that the 170 miles between London and Somerset would be a damaging emotional distance for the children, which would be compounded when coupled with the mother’s inability to promote the children’s relationship with their father.
The judge decided that although it was not ideal given the poor relationship between the parents, that the children would spend alternate weeks with each parent in London and that this would be better for them when compared to being physically distanced from their father.
The judge wrote a letter to the children communicating the decision that was made and asked that it be provided to them when they were on a camping trip with their father. The letter was attached to the judgment and has been hailed as an excellent way to communicate with children, with clear language suitable for the ages of the children for example, he starts the letter “my name is John and I am a judge”. He goes onto say “I have made the decision after considering who you both are, what you both need and things like your education, happiness and your welfare.”
At the end of the judgment, the judge urged both the parents to work together for the children and to improve their communication with each other to make sure that co-parenting the boys would be a success.
At Pinney Talfourd, our family solicitors are members of Resolution, which aims to use a constructive approach to family issues, which considers the family’s needs. If you are want to find out some more information, please contact a member of our Family team to book a consultation.
The above is meant to be only advice and is correct as of the time of posting. This article was written by Lucy Nicholson, Solicitor in the Family team at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of February 2023.