Court Emphasizes Child's Welfare and Parental Communication in Child Arrangement Order Case [2023] EWFC 262 (B)

Citation: [2023] EWFC 262 (B)
Judgment on

Introduction

In the recent judgment of case number [2023] EWFC 262 (B), the court addressed several significant issues relating to child arrangement orders, including the determination of a child’s primary residence, schooling, and contact arrangements with both parents. This article scrutinizes the legal principles elaborated within the case, emphasizing their application to the case’s facts and the welfare checklist as derived from the Children Act 1989.

Key Facts

This critical case involved the final hearing of the proceedings concerning the child, referred to as Z, and her two parents, K and Y. There were cross-applications concerning residence, schooling, and contact. The core dispute centered on which parent Z would live with, how her time should be apportioned between parents, her schooling choices, and specific concerns about potential parental alienation. The case was determined by District Judge Coupland.

The judgment illustrates the application of several legal principles as follows:

  1. Paramountcy of Child’s Welfare: The ruling underscored that Z’s welfare was the paramount consideration, adhering to Section 1 of the Children Act 1989. The judge meticulously balanced Z’s welfare with her clearly articulated wishes and feelings.

  2. Welfare Checklist: The court systematically considered the welfare checklist outlined in s.1(3) of the Children Act, taking into account Z’s wishes and feelings, her physical, emotional, and educational needs, the likely effects of any change in her circumstances, her age, sex, background, any harm suffered, and the capacity of each parent to meet her needs.

  3. No Order Principle and Delay: Affirmed by s.1(5) and s.1(2) of the Children Act, the court reminded that no order should be made unless it benefits the child more than making no order would. Moreover, the principle that delay in resolving issues is likely to be detrimental to the child’s welfare was acknowledged.

  4. Co-Parenting and Communication: Munby P’s remarks in Re H-B (Contact) and McFarlane LJ’s in Re W (Direct Contact) were cited to highlight the responsibilities of co-parenting and clear communication. These cases discuss how parenting sometimes involves making decisions that aren’t aligned with a child’s wishes.

  5. Parental Alienation: The concept of parental alienation was contemplated without using it as a diagnosis. Instead, the focus on behavior within a specific family setup as per ‘Re S (Parental Alienation: Cult: Transfer of Primary Care)’ was employed.

  6. ** Standard of Proof**: The balance of probabilities standard was upheld reflecting that it is up to the person making allegations to prove them to this standard.

  7. Article 8 ECHR: The child’s and parents’ right to family life were considered necessary when making any orders that might interfere with such rights.

Outcomes

The court concluded the following:

  • Z’s residence to be shared between K and Y, with specific provisions for overnight stays and contact days.
  • The child’s schooling to remain unchanged at School C, reflecting Z’s wishes and the potential harmful impact of changing schools.
  • Each parent to hold Z’s passport according to who has the upcoming trip, along with the provision of details between parents when traveling abroad.
  • No prohibited steps order issued as the court found no evidence to suggest a risk of non-return by K following trips abroad.
  • No family assistance order was made due to lack of evidence on its necessity or utility.

Conclusion

The decision reaffirms the importance of the child’s welfare as the overarching concern within family law cases, while also considering the child’s articulate views within the context of her best interests. This judgment serves as a reminder of the court’s reluctance to adopt ‘parental alienation’ as a label but instead focuses on specific harmful behaviors. The court has set a precedent emphasizing co-operative parenting and maintaining communication between separated parents while recognizing the child’s growing autonomy. It also highlights awareness of the child’s capacity to contribute meaningfully to decisions affecting her life and stresses that parental responsibility encompasses facilitating relationships with both parents.

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