Cases to Support an Application for a Transfer of Residence Order (‘TRO’)
This site is not intended to give legal advice. We are not lawyers. However, we believe, like many experts that PA is not a contact issue, but a child protection issue – that is, you are not applying to see your child (although that would be nice), you are applying to the court to try to protect your child from an abuser.
So, it is consistent with that philosophy to apply to the court for an order that your child’s residence be changed, from your ex’s, to yours. This has been described, wrongly, as the ‘nuclear’ option. This characterisation is wrong, because removing a child from an abuser is actually the safe, conservative option, in exactly the same way that the conservative option where physical or sexual abuse by a non-resident parent is alleged is to stop contact between the children and that non-resident father. Contact between the child and the abusing parent should be supervised, so that attempts to continue/further the alienation are prevented.
BUT – this is a high-risk strategy. A bit of an all-or-nothing strategy. Having said that, the Court can order whatever it likes, regardless of the applications that are made by the parties, if it considers that another course is in the child’s best interests. Whether the Court is likely to do so, on the other hand, is another matter. Courts like litigants to be consistent. Unless you are able to demonstrate PA clearly, this strategy is risky. You may be able to demonstrate PA only if you have a report from CAFCASS saying it is present – this is extremely unlikely. In the absence of that, you may need an expert – possibly, your only prospect of proving the existence of PA in your case is to get a report from a specialist psychologist, and you will be lucky to get one of those for less than £5,000.
The best that most of us will be able to do is to get a fact-finding hearing ordered, and to cross-examine your ex. You should be able to show that he or she is a liar. The alienator’s evidence is always beset by a ‘tension’ that exists between two competing claims they make, viz:
- You are a monster from whom your child needs to be protected, and
- They are trying to get contact going, but the child will not co-operate.
The tension of course is revealed by the rhetorical question: “Why would you be trying to encourage contact between your child and the other parent, who you have identified as a monster?”. You see, it makes no sense…
Now, getting your ex in the witness box is often tricky or impossible. They will often plead that they cannot get someone to look after any other children there might be. They may feign illness, citing the case as a cause of severe stress, or something like this. GPs sign such certificates without too much fuss. The alienators just tend not to show up. And judges do nothing, as you will see, time and again in these cases.
So then you are left with logic.
It’s logic vs CAFCASS. You will say “How come I became a monster only after we split up? How come before that (s)he was quite happy to leave our child in my care? How come this was OK when I was useful as a child-carer, but, now that I am no longer needed, I am a monster? Isn’t it strange that my child became afraid of me or rejected me only after I fell out with his mother?” And so on. And whilst these questions seem rhetorical to most logical minds, and PA can and should be regarded as an ‘inference to the best explanation’ of your child’s rejection of you, you will be fighting CAFCASS who will say, because they do, that there is no PA, that you are imagining it, that you are in some way responsible or, simply, that your child does not want to see you. And the lazy judge will side with CAFCASS because it is far less trouble for all concerned – except you and your child…
Finally, remember that you are the ‘good guy’. You need to show the judge that you have thought about the effect of transferring residence and have a positive intent to ensure the child’s continuing relationship with its other parent. Having said that, experts seem to agree that there should be a period of maybe three months of no contact at all with the other parent (perhaps whilst he or she receives therapy, and the expert ‘de-programs’ the child), and thereafter a period of supervised contact until everyone can be sure that the other parent has truly absorbed the fact that their behaviour has harmed the child and must stop.
Cases (Oldest first)
(In these cases, we shall use the letter M to denote mother, and F to denote father, unless otherwise stated)
Judge: Mrs Justice Bracewell
Children: Two girls, N, aged 8 and K aged 6.
Principle: Indirect contact is the worst option in addressing ‘intractable contact disputes’ (this term is often used as an alternative to PA). (UKAP respectfully suggests that ‘indirect contact’ is a misnomer – indirect contact (emails and such) is not contact at all). M obstructing contact – residence transferred to F.
Outline: M made allegations of inappropriate sexual behaviour by F towards his daughters. Allegations were determined to be ‘unfounded’. It was described as a ‘fact that the mother’s continued care of the children is incompatible with the children enjoying and benefitting from a normal relationship with their father’. She had ‘coached the children to make false allegations against the father’ and was ‘prepared to sabotage contact and defeat the orders of the Court’. M had ‘no capacity to change’. The learned judge indicated that
‘this is neither a unique or even unusual case to come before the courts’.
Result: Residence transferred to F.
Re A (A child)  EWCA Civ 899
Judges: Lord Justice Wilson and Mr Justice Hedley
Children: One Boy (‘S’) aged 8.
Principle: PA was in play, and was continuing. Only way of ensuring contact with F was to transfer residence of the child to F.
Outline: Mr Recorder Pulman had ordered a transfer of residence to F. M appealed. Evidence adduced by a court-appointed expert, Dr Anderson, indicated that M had a personality disorder which rendered her incapable of controlling her emotions regarding F. An Independent Social Worker (ISW) agreed that the child ‘must live with [F]’. M insisted that the child was not safe with F and installed CCTV cameras outside her home, and used recording equipment on her phone. M refused to comply with court orders. M’s behaviour at contact handovers had been ‘appalling’. The child would, despite initial difficulties, soon adjust to living with F. M was not capable of changing her behaviour over the span of her son’s childhood.
The CA found that there was ‘no ground upon which this court should interfere with the decision of the Recorder’ (to transfer residence to F).
Result: M’s appeal refused – residence to remain with F.
Re S  EWHC 192 (Fam) – ‘Part 1’
Judges: HHJ Bellamy (sitting as a Deputy High Court Judge)
Children: One Boy (‘S’) aged 11.
Principle: PA was in play, and was continuing. Only way of ensuring contact with F was to transfer residence of the child to F.
Outline: M was hostile to contact between F and child. M had ‘significant influence and power’ in S’s life. There was no real dispute between the parties as to the law – the welfare of the child is paramount. ‘The step of transferring residence from one parent to another is very rare and usually only taken as a last resort’. Such a step is often ‘more threatened than carried out’. S had become alienated from his father and thought him to be a ‘monster’, and he ‘hated him’. An expert indicated that ‘the child’s wishes and feelings were irrational and should play no part in the Court’s decision-making’. The judge accepted this and was satisfied that S had suffered emotional harm. But F showed a lack of empathy for his son, although, on the other hand, was found to be caring and compassionate. S continued to express a preference to live with M. S had not been to F’s house for 4 years, and a transfer was likely to cause ‘significant distress’.
In referring to his earlier assessment that F would have a steep hill to climb in asking the court to transfer residence, the judge was now convinced that this hill was ‘much less steep than I had at first thought’. F was more likely to be able to change than M, and was better placed than M to meet S’s welfare needs. On balance, though undoubtedly difficult in the short-term, it was in S’s best interests to transfer residence to F.
Result: Residence transferred to F.
Re S  EWCA Civ 325 – ‘Part 2’
This is linked to the previous case. M sought permission to appeal and this was allowed in part. The child was to be placed in foster care as a half-way step to transfer to F’s home. It was a condition of the transfer that M must be supportive of the transfer. Her communications with the child should be by telephone only and should be supervised.
Re S Family Division, Coventry District Registry 11th August 2010 – part 3
Expert evidence from Karen Woodall was considered. She had ‘no doubt that S is an alienated child.’ Dr Kirk Weir indicated that therapy was unlikely to work. S was refusing to engage with the process and the proposed transfer of residence, and was threatening self-harm. F accepted that he should not proceed further. The court was satisfied that S was alienated and accepted Dr Weir’s evidence ‘as to the concept of alienation as a feature of some high conflict parental disputes may today be regarded as mainstream’. Karen Woodall conceded that the progress that had been made from therapy was ‘tiny’. Change of residence would not proceed.
S said he might see F after his exams.
“Overall, S managed the situation very well, but sadly we could hear his father sobbing as he left”
A truly shameful case where the courts did much too little much too late. The case dragged on for several years, and eventually had to be abandoned by F in view of the alienated (as the court found) child’s threats of self-harm if the order to transfer residence was carried out.
Re D  EWCA Civ 496
Judges: Lord Justices Wall and Aikens
Children: Two Boys ‘T’ aged 12 and N aged 9.
Principle: PA was in play, and was continuing.
Outline: Allegations from M that F was a paedophile, and had sexually abused the boys. The children were “effectively living a lie. They were being forced by their mother’s obsessional beliefs to satisfy her, to please her and to accept what she believed even though they did not believe it themselves”. An expert concluded that ‘abandoning T to the pressures of his mother’s belief system would run a real risk of distorting and warping his psychological development so profoundly that in his adult years he could be emotionally crippled and unable to form trusting relationships with others’. M refused to comply with contact orders. The trial judge ordered the children to live with F’s parents. M sought permission to appeal. M argued that too much distress would be caused by a transfer of residence. She clung to the lie that F was an abuser and that his parents were facilitators of the abuse. The CA found this ‘fanciful and absurd’.
The CA found that M’s proposed appeal had ‘no prospect of success whatever’.
Result: M’s application for permission to appeal refused – residence transferred to F’s parents.
Judges: Mr Michael Keehan QC
Children: One boy aged 5.
Principle: False allegations made by M against F and F’s brother that F was a drunk and a sexual abuser. These allegations, if persisted with, would cause severe emotional hard to the child.
Outline: A shared residence order was in place. CAFCASS recommended that F be given sole residence. The judge thought that, if shared residence continued, the matter was bound to come back before the court over continued problems with contact. The judge said “I simply do not believe that there is any set of orders that the court could make that this mother would not seek to circumvent”. Whilst there would be some short-term disturbance for the child, “I am completely satisfied that those risks are completely outweighed by the risks to D if the current arrangements are continued”.
Result: Sole residence ordered in favour of F. The father would have the choice of where D goes to school.
Application by F for transfer of residence. Two boys aged 8 and 10.
- M had commenced a relationship with another man, ‘A’. F concerned about A’s relationship with the children.
The CAFCASS officer recorded this:
“B also said: ‘[F – the children used the father’s first name] dragged us away and punched Mummy a few weeks after they got married. [F] wouldn’t let Mummy drive in the car and forced us to walk in the rain to school.’ I asked the boys if they remember this and they said no. I asked how they knew this and J told me: ‘Mummy told me.’ I asked when and he replied: ‘Last week, I think.’ He also added mummy had said: ‘Remember, the CAFCASS lady is coming.’ I asked J if he thought mummy wanted him to tell me about that and he said: ‘Yes.’”
The boys wrote a letter to the judge saying that they hated their father because he tried to drown J and strangle B.”
“On 11 April 2011, the Guardian supervised a contact session. At the beginning, the children were very reticent. J would not make eye contact and told his father he did not like him. B became tearful and told his father that he missed him and would like to see him more, and then gave his father a cuddle. The meeting then became more relaxed and by the end the children said they would like to see their father again. They became excited at the thought of doing some cooking at his flat and the occasion ended with the children cuddling their father and saying goodbye.”
- “The Guardian filed a report in which she reported on the children’s statements and the mother’s account that she tried to encourage the boys to go for future contact, but they would not and were suffering emotionally. The Guardian found the children’s feelings to be genuine and “based on a wealth of knowledge”. J told her he had no emotion but hatred for his father and B said that his father was not a nice man.
- The Guardian’s recommendation at the hearing in February 2012 was that she would be concerned about the children having frequent direct contact. There was no evidence of benefit from the contact that had occurred. She advocated that contact should be twice a year for four hours, consisting of activities in the children’s home area. The next occasion would therefore be around Easter 2012 and the next one after that around Christmas 2012.
- Having heard evidence, I found that the Guardian’s approach was profoundly flawed for reasons more fully given in a judgment delivered at the time. In it I said this:
“I acknowledge that Miss H is not an experienced CAFCASS officer, having joined the service in September 2010, but I am of the view that she has mistaken these children’s best interests by falling into the following errors. Had she applied the welfare checklist to this case she would have seen that it is not just about the children’s wishes and feelings and that it is not just about short term problems, but about medium to long-term issues. Had she analysed the children’s wishes and feelings correctly she would have seen that they cannot be taken at face value. They are instead, in my view, a reflection of the children’s loyalty to one parent, who happens to be, in this case, their mother. I find that Miss H takes no account of the losses and the effective estrangement of the children from their father arising from her proposals.
“I further find that her analysis does not take account of the fact that if the children realise they can get their own way on this issue it is a terrible lesson to them for life in future. If you disrespect people, make up things about them and go on doing so you will, in the end, be in control of your situation. J and B ought not to be in control of their situation. Their views should be carefully considered, as I hope I have done, but I think that it would be directly contrary to their welfare to act upon the sorts of expressions of view that they have presented to adults. These children need guidance.”
- Of the children’s wishes, I said:
“These wishes and feelings were conveyed both in writing and in conversation to the Guardian in what I regard as being most unsatisfactory circumstances. This case has, for a long time, been about the influence that these parents have on their children and how that limits the children’s room for manoeuvre. Nevertheless, the guardian interviewed the mother in the presence of the children and the children in the presence of the mother and, as it happens, did not see the father at all, but spoke to him on the telephone.”
- I also rejected the Guardian’s formulation that the mother should “continue to promote the contact and encourage the children to understand that their father loves and cares for them”, when it was clear that nothing of this kind was in fact occurring.
- I therefore departed from the Guardian’s recommendation and made a final contact order providing for contact in Blackpool at holidays and half terms. The initial dates were 13-17 February and 11-16 April 2012. On 13 February, the children refused to go and on 22 February the father issued enforcement proceedings. On 22 March, I appointed a new Guardian, Mr M of Plymouth CAFCASS, and directed that the Easter contact visit should occur. It did not. On 11 April, the children were taken to a contact centre for handover with the Guardian being present. The children were hateful and insulting to their father and after about four hours attempts to persuade them were abandoned. On the way home the mother took the children to McDonalds “for a treat, because they had been through a lot”,as she put it. The next day a further handover attempt was made, but the children fooled around in the back of the car and then ran away. The father described the children treating it as a game. He noted that the children had not been brought with any bags of clothes or other belongings for a five day visit.”
- The welfare of J and of B, individually and together, is my paramount consideration. In such an apparently intractable case, careful analysis of the welfare checklist is essential.
- At the outset, however, a central factual question must be resolved. Why do two children, who enjoyed seeing their father as recently as April 2011 and at New Year 2012, appear now to be so violently resistant to doing so again?
- The mother says that she has done everything she can, bringing boys to handovers and telling them to go. She blames the father and the guardian for the failure of the recent attempts. She for her part has complied with the order by ‘allowing’ the children to see their father.
- I do not accept any of this. I have had the opportunity to observe the mother’s approach over the past nine months. I find that she does not in truth want the children to have a good relationship with their family in Blackpool. I reach that conclusion for these reasons:
- In May 2010 the boys, then aged eight and six, were naturally and appropriately fond of their father, according to the social services report. When the children saw their father in April 2011, they soon showed their true feelings, and the same can be said about contact at the end of last year and over New Year 2012.
- Nothing that the father himself has done explains the children’s stance. Their accounts of him squeezing or drowning them no doubt have their origin in boisterous play, but could not possibly have justified the mother stopping contact for eight months. Their litany of complaints about his behaviour during contact has the flavour of intelligent children casting around for justifications.
- I note that the mother also stopped contact between the boys and her own mother, whereupon they became very negative about their grandmother. In effect, the children do not see people that the mother does not like.
- The mother’s true view of the father’s importance is seen in her changing the names on the children’s passports in early 2011.
- The same can be said for her abrupt removal of the children to Devon as soon as the psychologist’s report arrived in August 2011. At a stroke, this placed a geographical distance of 300 miles between the children and their father. Given the very limited financial resources within the family, this is a huge practical obstacle. It also amounts to a psychological obstacle: the children are old enough to get the message that their mother would not take them to live in Devon if she thought that it was important for them to see their father and family in Blackpool.
- The fact that the mother did not tell anyone (the school, CAFCASS, the psychologist, the Court) let alone the father or any of the children’s relations, shows the value she places on views other than her own.
- Following the move, the mother initially defied the Court. Committal proceedings were necessary in order to gain her attention, after which three contact periods took place. Although these went well, the mother was quick to say that the boys had not enjoyed themselves, and then to seize on the misguided recommendation of the former Guardian that there should be virtually no contact at all (8 hours a year in Devon).
- I have heard the mother give evidence a number of times. Her statements that she supports contact are unconvincing, and her attitude towards the father and others has become increasingly negative.
- I have no doubt that if the children thought their mother were serious about them going for contact, they would obey her. They are obedient boys: in refusing to go they are not in reality being disobedient, but obedient to what they know their mother expects of them.
- I therefore reject the mother’s case that she is trying her best to make the children go. Her real attitude is that the children do not need these relationships at all.
Ordered: Contact with a transfer of residence order suspended on M’s compliance with contact order. Also, if the children not made available for contact, the Tipstaff was to remove the children and deliver to F, under s 34 Family Law Act 1986.
The Judge observed
“Weighing up matters, my conclusion is that it is unacceptable from the point of view of the boys’ welfare in the short, medium and long term for them to be deprived of family relationships that are essential for their development as balanced young people, and as adults. Although leaving the children to grow up in relative isolation of their mother’s home is the easier short-term solution, it does not provide the foundations that they need for a healthy, rounded future.”
UKAP comments: “This is a robust judgement of the kind that ought to be followed in cases of clear alienation, and follows UKAP’s recommendation of using suspended TRO’s as a useful tool to enforce contact. It is also demonstrative of the well-established principle that short-term discomfort for the children is outweighed by the long-term welfare interests of the child in having meaningful contact with both parents, as outlined by Dr Kirk Weir”
RS vs SS – Principal Division of Family Registry 2013
Judge: HH Judge Harris
Children: Two Boys ‘AB’ aged 14 and CD aged 11.
Principle: PA was in play, and was continuing. This was a “high-conflict dispute that had been going on for most of the children’s’ lives”. F’s application for TRO was supported by the children’s Guardian.
Outline: M believed that F’s relationship with his new partner began before his separation from M. No findings made on that, except that in the judge’s view, M’s beliefs in this respect, had led to the current difficulties. M had made contact difficult. M asked for permission to take the children out of the country to ‘get away from all this’. After some period of F and M moving about both settled in the UK. Contact continued to be difficult with F’s requests being met by threats of injunctions and the police. According to F and and the boys’ teacher, M forced the boys to phone F and beg him to withdraw the court proceedings, failing which M would remove the boys from the jurisdiction. The calls were recorded and heard by the judge who described M as ‘using disgusting language and her anger was uncontrollable’.
The teacher referred the case to social services who indicated that there were no child protection concerns, and closed the case…
The boys started to refuse contact with F. M suggested a cooling off period with no contact. [comment: a classic alienator tactic, playing for more time to entrench the alienation]. The Guardian concluded that ‘it was within the mother’s gift whether contact took place or not’. The mother attempted an injunction, but produced no evidence in support. The judge found that M was using contact to control F, and in particular his financial commitments to the children. F said that if residence was transferred to him he would promote plentiful contact with M. CAFCASS indicated that M was sharing details of the court case with the children.
The judge found F’s evidence convincing and preferred his evidence to M’s. He found M to be “a very angry and wilful woman. Her hatred of F is almost pathological…this is likely to have its origins in the circumstances of the breakdown of their marriage. These were fuelled by maintenance issues. She had no insight into the harm she had caused the boys. There were real concerns as to her as a role model. This M has significantly failed these boys. Their views across the board faithfully reflect hers. Contact is untenable”.
Result: Residence transferred to F. (Even after this order, the mother refused to comply until the help of the police and the Tipstaff was engaged)
Judges: Lord Justices Tomlinson, McFarlane and Davis (an Appeal from Parker J)
Children: Three boys, ‘A’ aged 15 ½, ‘B’ aged 13 ½, and ‘C’ aged 11 ¾
Outline: False allegations made by M against F as a sexual/violent abuser. PA is “exceptionally harmful”. Parker J rejecting the views of both CAFCASS and the Guardian, saying “Parents who obstruct a relationship with the other parent are inflicting untold damage on their children and it is, in my view, about time that professionals truly understood this…I disagree [with both CAFCASS and the Guardian] because they have not taken into account the degree of parental manipulation …and inappropriate power given to the eldest boy. The mother cannot safely have unsupervised contact with the two younger boys at the moment. The boys must remain living with F”
M sought permission to appeal.
Result: Permission to appeal refused. The boys to continue living with F.
Judge: HH Judge Lochrane
Children: Three, aged 4, 5 and 8
Outline: F’s application for TRO supported by Guardian. Mother frustrating contact. ‘This mother is still being dishonest and disingenuous’. M changed the children’s schools without consulting F. Guardian described M as “continuing to be contemptuous of F and devaluing his role in the children’s lives”. This evidence was accepted by the judge. ‘M alleges that she tries to promote contact. F has been sensible and able to address the needs of the children. M has shown herself to be incapable of fostering a proper relationship between the children and F’. “The children have been subjected to emotional abuse by their M. She has deliberately and wilfully and…maliciously set about damaging their relationship with their father. The Guardian indicates that “I do not believe that Ms G has the ability to change her perception of the situation without therapeutic mental health intervention…”
Result: Residence transferred to F.
UKAP comments – a very useful and robust judgement, albeit at County Court level, so it would have persuasive rather than binding effect on other courts.
Judge: Her Honour Judge Gordon-Saker
Children: One 9 year old girl (‘IB’)
Outline: M was encouraging IB to have a negative view of her father and consequently had caused harm to IB. F had backed off to give IB space, but this had made matters worse, simply exacerbating the estrangement between F and IB. Judge held that M was incapable of promoting contact with F.
Result: Residence transferred to F. Post script – “IB managed the move to her F and by the next hearing on the 3rdMay was also having contact with M”.
UKAP comments: Again, a useful and robust county court judgement
UKAP comments: As with contact cases, the cases here are a mixed bag of good and less-good decisions made by different judges at different levels. Having said that some lower-court judges are not robust, there are clearly several exceptions to this rule. It is just unfortunate that the result seems to be something of a lottery, depending on which judge you get. Given the marked similarities in cases, similarities that the courts are very well-aware of, UKAP’s view is that a significant amount can be achieved by a more standardised approach, albeit with flexibility built in to take account of the Paramountcy Principle. Courts see these cases all the time, day in, day out. It is a shame that the resultsare so unpredictable. Children, and litigants need more certainty than this.
A ray of hope? Recent judgements seem to be getting more robust. Let us hope that this is a trend that will continue.