There are two main scenarios which give rise to a court changing a child’s living arrangements:

Cases with unyielding disputes over contact

This is when the child has is having no, or limited, contact with the parent they do not live with. Usually this is a case of the parent with whom the child lives stopping contact for no apparent reason and occasionally in breach of a court order. In some of these cases that parent may have made unfounded allegations against the other parent in attempt to justify their actions.

Cases of parental alienation

This is when the child expresses a strong and unjustified dislike of the parent with whom they do not live. Usually, the parent the child lives with vilifies the other parent or more subtly influences the child’s feelings, alienating them against the other parent.

Initial considerations

These cases can be tricky for the court. The court needs to try and separate the child’s independently held views from their resident parent. In doing so, it must deal with the effects of the resident parent’s manipulation of the child and what could be genuinely held and strongly expressed views from a child no longer able to see the long-term benefits of a having a relationship with both of their parents. 

What is the court’s approach?

If the resident parent refuses to or cannot meet the child’s need for that relationship with the non-resident parent, the child’s living arrangements can be changed by the court, provided it is in the best interests of the child.

Before making such a big decision, findings of fact must be made about the issues in the case and the reasons the arrangements for contact are not working. The court must be satisfied that the objections to contact are unreasonable. After this is done the court can make decisions changing the child’s living arrangements, explaining why the child’s best interests needs that.

In cases with disputes over contact, the court must: 

• Come to terms with the allegations made by the resident parent;
• Make findings about the parties’ and the child’s positions, including reasons for the child’s alienation from one parent;
• Take any non-compliance of a court order seriously and deal with it properly;
• Make all efforts to ensure orders made are enforced.

Much guidance has been given about the approach the court should take in cases with unyielding disputes over contact, notably that experts should help facilitate contact and not just write reports for the court. Also allegations of misconduct made by any party in the case should be investigated and resolved speedily, and the court can use committal or imprisonment to achieve the necessary deterrent or coercive effect in enforcing the order, but only as a last resort.

The court needs to be careful to place the responsibility for contact on the parents rather than the child. Conforming to the child’s wishes and feelings, and allowing them to dictate the terms of contact burdens them with a responsibility they should not be asked to bear at that age.

Is there a test the court conducts in deciding whether to change a child’s living arrangements or not?

The test is whether changing the child’s living arrangements would serve the child’s welfare, and there is a welfare checklist to assist with this. The court must be satisfied that the positive long-term benefits of a court-ordered change outweighs the short-term disruption caused.

The court cannot order a change of the child’s living arrangements purely as a punishment for the parent who is obstructing the contact. These considerations need to be balanced by the court:

• Long-term harm caused to the child by being denied a proper relationship with both parents
• Short-term objections of the child, considering their views may be tainted by the influence of the obstructive parent and the conflict between the parents 

Practical considerations

The court needs to be provided with a section 7 report, which is a report compiled by an independent social worker. In a case with disputes over contact, specialist input from an expert familiar with such scenarios should also be considered, although the court’s permission will be required to admit this.

It is also often necessary for the child to be separately represented and joined to the proceedings as a party. A guardian will therefore be appointed and they should have input in any expert evidence to be obtained. If it is likely that the child needs separate representation, this ought to be introduced early on in proceedings.

How is the order enforced?

This generally depends on the nature of the child’s relationship with the non-resident parent. Regardless, the court needs to set out the specifics of how the change in arrangements should be managed on the ground so that the change is effectively implemented.

If the change is immediate

It is more difficult to implement such a change unless the child already has an existing relationship with the non-resident parent or has been having some contact with them. The court generally considers the use of expert evidence in such instances.

If the child arrangements order is suspended

These operate like an ‘unless order’. This means that the living arrangements will be transferred to another other person unless the child has the contact which has been set out in the order. They are drafted on the premise that the living arrangements of the child will change to another person unless the child has the contact as required by the order.

The court will make a child arrangements order which regulates who the child is to live with, but set out that this is not to be enforced provided contact takes place. This gives the parent the child lives with a last chance at facilitating contact.

Can the living arrangements be transferred to a third party?

Yes, this can be combined with a suspended child arrangements order which regulates who the child is to live with. The court may ask other members of the family to act as intermediaries in these circumstances, while contact is being properly established.

Otherwise, the court can get the local authority involved, provided the threshold for such an intervention is met. They would then consider having the child placed in foster care while contact is being properly established with the non-resident parent.

How are child arrangement orders enforced?

Child arrangement orders regulate when a child is to live with each parent in their respective households, but the court must ensure that the order shows no favouritism and that both parents are equal in law.

Looking ahead

Parental responsibility

In cases of unyielding contact disputes, the court will expect that:

”Parents, both those who have primary care and those who seek to spend time with their child, have a responsibility to do their best to meet their child’s needs in relation to the provision of contact, just as they do in every other regard. It is not, at face value, acceptable for a parent to shirk that responsibility and simply to say ‘no’ to reasonable strategies designed to improve the situation in this regard”.

(Re W [2012] EWCA Civ 999, McFarlane LJ at paragraph 78.)

It has been repeatedly stressed that it is the parents, not the court, who have parental responsibility of their child. They are the primary decision makers for the child and the burden of resolving any parenting disputes rests with those with parental responsibility. Parents are expected to use all their skills and stratagems to facilitate such things as contact. It appears that in the future the courts are increasingly likely to adopt a robust approach to those parents who do not facilitate contact.