W (A Minor): Change of residence not due to mother's conduct

The case of W (A Minor) [2010] EWCA Civ 1280, reported today, graphically illustrates the problems faced by a court when dealing with difficult and uncooperative parties.

The facts: The case concerned a 3 year old child, "P" (I'm not sure why the initial is different from the case name). In November 2007 the father applied for contact. There then followed "a lamentable tale of wilful disobedience of court orders by the mother, and a disregard by her not only of the court but, more importantly, of P's interests". In addition to disobeying court orders, the mother made various unsubstantiated allegations against the father and failed to appear for court hearings.

By the time of the final hearing in October 2010 the judge was "satisfied that the spiral of the mother's actions shown over nearly three years is such that there is a real and formidable risk that P will, through at worst total deprivation and at best a disruption and negative distortion of her relationship with her father, be deprived of part of her central emotional needs and rights to have a warm and meaningful relationship with her father". The judge made a residence order in favour of the paternal grandmother.

The mother sought permission to appeal.

Held: It appears that the mother felt that the judge had changed P's residence as a means of punishing her for her failure to obey court orders. As Sir Nicholas Wall said (at paragraph 52): "this would plainly be an inappropriate exercise of discretion, and would form a legitimate basis for an appeal. The mother's conduct is about as bad as it is possible to get, but that is not necessarily a basis for removing P from her care. The judge had to decide that question on the basis of what was in P's interests."

He found, at paragraph 57: "In my judgment, the course which the judge took was one which was properly open to her on the evidence. In my view, the contrary is unarguable. The judge plainly did not move P as an act of frustration or irritation at the mother's contumelious conduct. She moved P because she took the view that P's welfare in the longer term required such a move."

Accordingly, the application was dismissed.