Case No. EWFC-92

21.The applicable law was agreed between the advocates. As mother was not represented she did not address the same but I accept the summary prepared as being accurate. I set it out here:22.Section 1 of the Children Act has been considered throughout. The child’s welfare is paramount.23.A change of residence is not a last resort and should not be treated as such, as the President of the Family Division said in Re L (A Child) [2019] EWHC 867 (Fam):•It is important to note that the welfare provisions in CA 1989, s1 are precisely the same provisions as those applying in public law children cases where a local authority may seek the court’s authorisation to remove a child from parental care either to place them with another relative or in alternative care arrangements. Where, in private law proceedings, the choice, as here, is between care by one parent and care by another parent against whom there are no significant findings, one might anticipate that the threshold triggering a change of residence would, if anything, be lower than that justifying the permanent removal of a child from a family into foster care. Use of phrases such as “last resort” or “draconian” cannot and should not indicate a different or enhanced welfare test. What is required is for the judge to consider all the circumstances in the case that are relevant to the issue of welfare, consider those elements in the s1 (3) welfare check list which apply on the facts of the case and then, taking all those matters into account, determine which of the various options best meets the child’s welfare needs.”24.The High Court affirmed Re L in Re H (Parental Alienation) [2019] EWHC (Fam), a case in which the expert gave a clear opinion that the Mother had alienated the Father. The Court found at [31] that ‘the only means by which H can have a full relationship with both of his parents would be to make a Child Arrangements Order that H live with his Father’. The Court recognised the risk of such a move causing harm and Keehan J said at [33]: ‘When I balance the potential adverse consequences of a transfer of residence for H against the short and long-term benefits of having a loving and beneficial relationship with both of his parents, I am satisfied that the balance falls decisively in H's welfare best interests in ordering that H should now live with his father’. That case is very similar to this case, in which a change of residence seems the only practical way forwards to safeguards the child’s long term welfare interests. The expert evidence in this case is clear that if the child continues to live with the Mother he will continue to suffer emotional harm and that the Mother is not capable of change in the short term. 25.The President makes clear in Re L that the threshold test for a change of residence should, if anything, be lower than the test applied for removal to foster care in public law proceedings. The separation test for an interim removal in public law proceedings (which is applied to case with no expert evidence on short notice and at very short hearings) is set out at [7] of C (A Child: Interim Separation) [2020] EWCA Civ 257: (1) An interim order is inevitably made at a stage when the evidence is incomplete. It should therefore only be made in order to regulate matters that cannot await the final hearing and it is not intended to place any party to the proceedings at an advantage or a disadvantage. (2) The removal of a child from a parent is an interference with their right to respect for family life under Art. 8. Removal at an interim stage is a particularly sharp interference, which is compounded in the case of a baby when removal will affect the formation and development of the parent-child bond.(3) Accordingly, in all cases an order for separation under an interim care order will only be justified where it is both necessary and proportionate. The lower ('reasonable grounds') threshold for an interim care order is not an invitation to make an order that does not satisfy these exacting criteria.(4) A plan for immediate separation is therefore only to be sanctioned by the court where the child's physical safety or psychological or emotional welfare demands it and where the length and likely consequences of the separation are a proportionate response to the risks that would arise if it did not occur.(5) The high standard of justification that must be shown by a local authority seeking an order for separation requires it to inform the court of all available resources that might remove the need for separation."26.For the purposes of his decision in this case, the judge summarised it this way:"The test is whether the child's safety is at risk and, if so, any removal should be proportionate to the actual risks faced and in the knowledge of alternative arrangements which would not require separation."27.The true separation test is not applicable here as the question is not whether the child should be moved to a stranger’s care, and the local authority granted parental responsibility. The question is whether the child should be moved to the care of his Father, who has been identified as a good and capable parent by an expert and who has parental responsibility for him. 28.The threshold in a case like this one is necessarily far lower than the separation test, will the child continue to suffer significant harm if he/she remains in the care of their Mother. In any event the separation test, so far as it is applicable, would be met in this case. The necessarily lower test of an interim change of residence in private proceedings must, therefore, also be met. The evidence is clear from the experts, social worker and Guardian – this child has suffered and continues to suffer from significant emotional harm and accordingly the threshold is met for the making of a public law order, let alone a private law order.