An application was made to the Family Court for a transfer of residence to the father of a child whose mother had been obstructive in allowing contact. In the case of TE v SH and S, the child, a boy of nearly 12 years of age, had not had contact with his father since 2006 and the court had to consider:-
• Harm done to the child through lack of contact with his father, although his mother’s care was not criticised except on the issue of contact;
• Whether the father would be able to care for his son and whether the father would maintain contact with the mother if the transfer of residence was granted;
• If the son remained with his mother, would direct contact be prevented altogether;
• If the Court transferred residence to his father, would the son’s best interests in the longer term justify the short-term disruption of a transfer of residence?
The child’s parents had separated before he was born and he had lived with his mother all his life. His father had married and had two further children, the child’s half-brothers. Despite contact orders, the son had not had direct contact with his father for almost four years.
The Judge found that the father was “devoted and committed to his son” but had some concerns that the father was not always fully aware that actions he took hoping to gain a positive reaction might result in a negative reaction, such as when he sought DNA testing to show he was the father, he did not foresee that the mother might see this as a hostile action. The son had previously stayed at his father’s house and had his own bedroom. He would also be able to keep in contact with his current friends by inviting them round to stay as well as by phone and web-based contact. The father also proposed contact with the mother for alternate weekends and half the school holidays as well as on-going contact by phone and email after a settling in period.
The Judge found the mother was hostile to contact between the father and son and had organised out of school activities for the son every day including weekends, giving the son a negative impression of contact disrupting his out of school activities. The mother had given the son a choice of reading a letter from his father, failed to get her son to acknowledge presents from his father’s family and told her son that if he wanted to contact his father, she would have to “go along with it.” The mother had told the Child Support Agency that she no longer wished to receive child maintenance payments from the father, despite the fact the father was willing to pay. She had also rejected the father’s request to attend Parents’ Evening with her and failed to consult the father about her choice of school for their son, suggesting she had failed to recognise the significance of shared parental responsibility. Although she was meeting her son’s needs to a high standard and her son was doing well at home and doing well at school.
The son was represented by a guardian from the National Youth Advocacy Service. The guardian felt that there should be a residence order in favour of the mother and that the court should respect the son’s expressed wishes not to have contact with his father. The Judge found that the guardian had lost some of her sense of objectivity in representing the son’s wishes to the court and had not fully accepted earlier judgements concerning the mother’s attitude towards her son’s contact with his father.
Under the Children Act 1989 and Article 12 of the UN Convention on the Rights of the Child, the court has to take the child’s wishes into consideration but also consider the child’s wishes in light of age and understanding of the child. The Judge found that the son had been emotionally harmed by ongoing parental conflict and had not been able to enjoy a relationship with his father’s family. If his mother cannot help restore her son’s relationship with his father, then a change of residence should be considered.
The judge stated that “orders transferring children from one parent to another are very rare and usually only taken as a last resort.” The judge found that the son had been alienated from his father and the son’s expressed wishes for no further contact must be seen in context of that alienation, which may not reflect his true wishes. Although there would be initial distress at the change in residence, if his mother could cooperate, the distress could be reduced. It was in the longer term best interests for the son to be transferred to residence with his father.
If you have any queries about contact or residence issues after divorce or separation, please contact James Haworth on 0116 212 1080 or Alistair Dobson or Janet Hopkins on 01858 445480 now or complete one of the on-line forms. James is a member of the Leicestershire Regional Committee for Resolution, an association of legal professionals working to reduce conflict in separation and divorce.
