High Court confirms the importance of a young person’s wishes and feelings when considering if a Child Arrangements Order should be made beyond the age of 16.
Maria Scotland successfully appeared for the Applicant (mother) before the High Court in the case of Re T(A Child) (s9(6) Children Act 1989 orders: Exceptional Circumstances: Parental Alienation) [2024] EWHC 59 (Fam).
5SAH’s second-six family pupil, Heidi Burrows provides an overview of the case.
Background
The family at the centre of this case have been subject to extensive litigation before the Family Court having had around 70 hearings, before 26 judges, over 9 years. On this occasion the matter was before the Court to determine whether a Child Arrangements Order (CAO), which ordered contact between “T” (now aged 15) and his Father should:
- continue at all; and
- be ordered to continue beyond his 16th birthday.
What did the parties argue?
The Mother argued for a no order for contact should be made based on T’s wishes and feelings and that contact should stop with immediate effect.
The Father argued that it is in T’s best interests for contact to continue. The default position is that a CAO ceases to have effect when the child reaches the age of 16, unless:
- it is bought to an end sooner by the court; or
- the court (having been satisfied that the circumstances of the case are beyond exceptional) has provided for such an order to extend further (which may be until the child reaches the age of 18).
The Father relied on section 9(6) of the Children Act 1989 which gives the Court the power to extend a CAO beyond the age of sixteen if the circumstances are exceptional. The Father relied on previous Courts finding of parental alienation against him as exceptional circumstances. This argument was accepted by a Circuit Judge in the lower Court, and then successfully appealed by the Mother to the High Court.
What did the High Court decide?
In the judgment handed down on the 17 January 2024 Mrs Justice Arbuthnot carefully analysed the series of previous judgments and findings about the parents and remarked the mother “is determined to ensure that the father has no relationship with their children”.
CAFCASS met with T and recommended that contact continues up to his 16th birthday. However, CAFCASS found it difficult to compel T to continue with contact beyond the age of 16. This was against his wishes as he unequivocally told both CAFCASS and the Judge. Given that T was 15, and had gained a level of maturity, the Judge found she must respect his wishes to the extent that it is in his best interests to do so. The Judge considered that this may be an ‘exceptional case’ for contact to continue, but it would be inappropriate not to recognise his wishes and feelings. The Judge ordered for contact to continue until his 16th birthday.
What is the significance of the decision?
The decisive factor in this decision was ultimately placed on the wishes and feelings of 15-year-old T, even though the judgment notes that these wishes and feelings have been formed by the mother’s manipulative behaviour since he was a young child. The Judge suggested but for his wishes and feelings, she may have considered this an exceptional case for an order to be made until an 18th birthday, even though these are normally reserved for children who have cognitive or learning difficulties, or other qualities which protract additional need for protection.
In her later decision handed down on 2 February 2024, see Re T (A Child) (No.2) (Transparency: Publication of the Party’s Names) [2024] EWHC 161 (Fam), Mrs Justice Arbuthnot decided that when “T” turns 18, her earlier decision referred to above will be published with the parents’ full names, and the children given random initials (the current judgement is anonymised). This decision (which shall be referred to as the publication order and publication decision) is the subject of an appeal to be heard in public by the Court of Appeal in the coming months. The Court of Appeal will consider whether publishing the earlier decision in 2 years naming the parents is in the public interest or not, as contended for Mother.
Heidi is a second-six Pupil with over 5 years of prior family law experience. Heidi practices exclusively in all areas of family law. With a caring and compassionate approach, Heidi accepts instructions on surrogacy and fertility law cases, domestic abuse cases, both private and public children proceedings, financial remedies, and international family law cases (including relocation disputes).
Maria practices exclusively in family law with a specialism in high-end/ big money financial remedy applications and (private law) children work. Maria is recognised in Spears' 500 2023 Guide: as a Top Recommended Family Law Barrister within the exclusive guide. Maria is ranked in the Legal 500 and Chambers & Partners in family law (including divorce & financial remedy). She is one of the leading family law juniors and is the joint head of the Family Team at 5SAH. Maria is a qualified arbitrator in financial matters.
