Key Issue: Determining Child Arrangements, Domestic Abuse Impact, and Costs in Private Law Proceedings

Citation: [2023] EWFC 246 (B)
Judgment on

Introduction

In the recent judgment of M v F & Ors: EWFC-B [2023] EWFC 246 (B), District Judge Coupland rendered a decision encompassing several core legal principles relevant to private law proceedings involving child arrangements, domestic abuse, and related costs. This case particularly sheds light on the welfare paramountcy principle, the impact of parental behavior on child arrangements, and financial implications in the context of litigation misconduct.

Key Facts

The case involves private law proceedings concerning four children, with the central issue being the determination of their living and contact arrangements between the parents – referred to as M (mother) and F (father) – along with the consideration of each parent’s conduct and its impact on the children’s welfare. The judgment follows a fact-finding hearing where the father’s allegations against the mother were dismissed, while several allegations against the father were proven, including abusive behavior, coercion, and manipulation of the children against the mother.

The court’s decision was guided by several well-established legal principles:

Children’s Welfare is Paramount

Under s.1(1) of the Children Act 1989, the welfare of the children is the court’s paramount consideration. This principle underpinned the entire judgment, emphasizing the need to focus on the best interests of the children rather than the interests of the parents.

Welfare Checklist

The court used the welfare checklist from s.1(3) of the Children Act 1989 to evaluate various factors, including the children’s wishes and feelings, their physical, emotional, and educational needs, and any harm they have or are at risk of suffering.

No Order Principle

According to s.1(5) of the Children Act 1989, the court should not make an order unless it considers doing so better for the child than making no order at all.

Presumption of Parental Involvement

Section 1(2A) of the Children Act 1989 prescribes a presumption that involvement of a parent in a child’s life will further the child’s welfare, provided it does not put the child at risk of harm.

Domestic Abuse and Contact

Practice Direction 12J highlights that contact arrangements must be safe for the child and the non-abusive parent.

Conduct of the Parties and Costs

The general rule that the unsuccessful party will be ordered to pay the costs of the successful party (Civil Procedure Rules r.44.2) is subject to discretion, especially in children’s cases where court practice generally does notaward costs to avoid dissuading reasonable participation in proceedings concerning children. Exceptions occur where a party’s conduct has been reprehensible or their litigation stance unreasonable.

Outcomes

District Judge Coupland made several critical determinations:

  • Child A will have a shared ‘live with’ order, maintaining the status quo of living predominantly with his father but reinforcing the importance of the mother in his life.
  • The younger children, Child B, Child C, and Child D, will live with their mother and have supervised contact with their father.
  • The judgment did not allow a change of school for Child A, emphasizing the stability of the current educational arrangement amidst concerns about potential disruption.
  • An order was made for Child B, Child C, and Child D to legally be known by the mother’s surname, M’s surname, for administrative reasons relating to passport renewals, acknowledging the significance of cultural identity.
  • A non-molestation order was made in favor of the mother for a period of two years.
  • The court ordered the father to pay 70% of the mother’s legal costs for the fact-finding hearing after assessing his conduct.

Conclusion

This case is an exemplary manifestation of the court’s dedication to the paramountcy of children’s welfare in family proceedings, reaffirming the principle that all decisions must hold the children’s best interests as the central concern. It further illustrates the tailored application of the welfare checklist and the consequences of parental behavior that impacts children’s welfare. Notably, the judgment underscores the court’s discretion in awarding costs in family cases, particularly where litigation conduct deviates significantly from accepted standards.

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