(Court of Appeal; Wall and Wilson LJJ; 29 April 2009)
In the course of the 6-year dispute between the parents concerning the 8-year-old child it had become clear that the parents were implacably hostile to each other. The child was living with the mother, with contact to the father. The expert instructed by the guardian reported on the damaging impact of the ongoing conflict on the child, suggesting that the court seriously consider independent foster care for the child, to remove him from the conflict. However, the guardian's report proposed that the child live with the paternal grandparents, although the grandparents had not made any attempt to apply for a residence order themselves. At the hearing of cross applications by the parents for a residence order, the expert gave oral evidence that a placement with the paternal grandparents would work only if both parents agreed, otherwise it would not remove the child from the battle between them. The mother was strongly opposed to such a placement. It had been established that the local authority did not believe the threshold had been crossed, and was not prepared to get involved. The judge made a residence order in the grandparents' favour.
None of the professionals involved doubted that the dispute between the parents had caused serious emotional harm. However, the local authority could not be required to institute care proceedings, even if the court took the view that such proceedings were essential for the protection of a given child. The judge had been correct to say that there was no point in a s 37 report, as it would not result in the local authority taking action and enabling the judge to make an interim care order. Placing the child with independent foster carers was an option that was simply not open to the judge. However, the judge should not have made a residence order in favour of the grandparents. In doing so the judge had given insufficient weight to the importance of parental care and of the child's family life with his half-sibling, who also lived with the mother. There was also a fundamental flaw in the judge's reasoning, in that a placement in an environment that was recognised not to be independent could not achieve the stated aim of removing the child from the contest. The paternal grandparents had been and continued to be directly critical of the mother. Further, there had been insufficient preparation for this change of residence. The judge had also been wrong to overlook the expert's recommendation that further therapeutic work with the parents might assist. Further work with the parents should be undertaken. Like many separated parents these parents had made the damage to the children caused by the separation much worse by continuing their battles against each other in legal proceedings. They had already caused the child serious harm; if they were not capable of grasping this opportunity, they might well lose care of the child.