What is the test for changing a child’s residence?
The court made a previous order transferring the home of a child from his mother and maternal grandmother’s in London to his father and father’s new partner in Northern Ireland. Permission was granted for the mother to appeal. The main issue on appeal was the approach the court should taken when the case falls just short (on a judge’s findings) of intractable hostility or parental alienation.
This judgment is interesting in that it begins to unite the two somewhat separate regimes of public and private children law, whilst reaffirming that the correct test for a change of residence is not one of ‘last resort’ in all circumstances but a welfare based balance-of-harm decision. The President states ‘one might anticipate that the threshold triggering a change of residence would, if anything, be lower than that justifying the permanent removal of a child from a family into foster care.’
The judgment explores the circumstances when it is not appropriate for a guardian to ask a child for their wishes and feelings, when to do so may harm an already highly conflicted child. It is essential reading for any practitioner who has an interest private law and the voice of the child within those disputes.
The judgment, including facts and reasoning, is available on Bailii as Re: L.