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Judge should not have transferred children’s residence to their father

The Court of Appeal has ruled that a judge was wrong to transfer the residence of three children to their father even though the mother had refused to allow contact in the past.

The father had made an application for contact following the breakdown of the marriage. The mother made allegations about him relating to domestic violence and submitted that he should be barred from having contact.

The judge dismissed the allegations as unfounded and ordered that contact rights should be granted. The mother still refused so the father applied for a residence order.

Shortly before the trial, the mother relented and signed a statement admitting that she had been wrong to refuse contact and accepting that the court should grant a contact order. However, she also asked the court to confirm that the children should continue living with her.

The judge decided that he could not rely on the mother’s new assurances and ordered that residence should be transferred to the father. However, that ruling has now been overturned by the Court of Appeal.

It held that transferring residence from the primary carer in this way should only be done as a last resort. The court had to balance the risks of removing the children from their primary carer, their mother, against the possibility that she might refuse contact again in future.

The judge had got that risk balance wrong and the residence order he made was premature.

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