Changing a Child’s Residence Under the Children Act 1989: A Delicate Balance of Welfare and Justice
In family law proceedings under the Children Act 1989, few decisions carry as much weight as changing a child’s residence. Whether the proposed move is from one parent to another or to a third party, the court’s paramount consideration is always the child’s welfare.
When a Child Arrangements Order Is in Place
If a Child Arrangements Order is already in force, any change in residence must be pursued through a formal application to vary the order. The court will then assess the proposed change through the lens of the child’s best interests, as outlined in Section 1 of the Children Act 1989.
Understanding Hostility and Contact Denial
In some cases, one parent may be relentlessly opposed to contact between the child and the other parent. The court must then investigate the reasons behind this opposition. Is it rooted in genuine concern, or is it an attempt to alienate the child from the other parent? The court must distinguish between justified hostility and unfounded resistance, ensuring that the child’s welfare remains central to any decision. This involves a comparative welfare analysis of all available options, using the welfare checklist in Section 1(3) of the Act.
Transfer of Residence: Case Law in Action
• Re L (A Child): The court transferred residence from the mother and maternal grandmother in London to the father in Northern Ireland. Despite the emotional impact on the child of such a move, the court found that the child was suffering emotional harm in the maternal household. The transfer was deemed necessary to safeguard the child’s long-term welfare
• Re C (A Child) (Residence): When a mother repeatedly failed to comply with contact orders, the court ordered an immediate transfer of residence to the father. The decision balanced the short-term disruption against the long-term harm of denying the child a relationship with her father.
Conclusion: Welfare Above All
The transfer of a child’s residence is never taken lightly. But when one parent’s actions undermine the child’s emotional well-being or sever ties with the other parent without justification, the court must act. The guiding principle remains clear: the child’s welfare is paramount, and every decision must reflect that unwavering commitment.
Should you need to seek further advice about what your best course of action is if you are considering a change of residency for your child, it is always best to seek legal advice. A helpful member of the team will be able to navigate you through your options on 0121 233 2042.
