(Court of Appeal; Thorpe and Thomas LJJ and Coleridge J; 7 October 2009)
After the break down of the marriage the mother refused to allow contact between the father and the three children. During contact proceedings the mother alleged domestic violence and an assault by the father on one of the children. At a hearing the mother conceded that she would not be relying on the alleged domestic violence and stated that she was prepared to co-operate in establishing contact. Shortly afterwards she withdrew that concession. At the conclusion of the fact-finding hearing the judge, who regarded both parents as unreliable witnesses, dismissed the mother's allegation that the father had assaulted one of the children.
Shortly before the next hearing, the mother filed a statement in which she professed to accept generous contact to father, provided the court made a residence order in her favour. The judge concluded that she could not rely on the mother, and made a residence order in the father's favour.
The mother appealed, arguing that the judge had focused on the mother's true approach to contact, not on the risk of shifting the children's residence from the mother's home to the father's home and balancing that against the risks that would arise if the mother's proposals were endorsed.
Allowing the appeal, the assessment of the mother's true position in relation to contact had been important but not crucial.
Significantly, there had thus far been no attempt to introduce a contact regime. There was no clear history of the mother disregarding contact orders.
The transfer of residence was a weapon of very last resort. The judge's order had accordingly been premature, and too risky for the children.