Courts are asked to make many different types of decisions regarding children and their family relationships. One of the most difficult decisions is with which parent a child should live and even more sensitive is the decision to move a child from the care of one parent to another.

This can be an issue considered by a court when there are allegations that a parent with whom a child lives has made it so difficult for that child to spend time with their other parent that the child is being subject to harm as a result. Whilst there are a number of ways in which the Court might try to tackle this issue, one of the solutions that a Court can consider is ordering that the child moves from the care of that parent to the other.

This was recently considered by the President of the Family Division in the case of Re: L [2019] EWHC 867 (Fam).This was a case in which the father sought an order that the child move from the care of the mother to his care. The reason for this was that the court found that the maternal family had manipulated the child into making allegations about the father which were found not to be true.

In such cases, the Court should consider all possible outcomes for the child and give the resident parent the chance to improve matters. However it was made clear by the President that the earlier test for a change of residence being a “weapon of last resort” needed to be reconsidered. He said,

“I would wish to distance myself from the language used insofar as it refers to a decision to change the residence of a child as being a ‘weapon’ or ‘a tool’… such language in my view risks moving the focus of the decision making away from the welfare of the child which must be the court’s paramount consideration”

This suggests that decisions to move a child from the care of one parent to another requires no greater test than that already set out in section 1 of the Children Act 1989 which must be applied by the court when making any decision regarding a child.

Whilst every case should be considered on it’s own facts, the case of Re: L makes clear that when making decisions about the welfare of a child, a change of residence from one parent to another can be an real consideration and is no longer a last resort.

If you require legal advice relating to child arrangement disputes or child arrangement orders, contact Farleys family law team on 0845 287 0939 or submit your enquiry through our online contact form.