Child Arrangement Order : Letter from Judge John

There was a child arrangement order case decided in London last summer which has recently attracted attention from the media. Not because it involved celebrities, or fantastic wealth, but because of the letter the judge wrote to the two children involved following his decision.

Parents’ child arrangement order applications

A and B, aged 11 and 8, are the children of parents who divorced in 2017, and who have been subject to court proceedings on and off ever since. They were aged 5 and 2 when the battles began, and they cannot remember a time when their parents were happy together. All they can consciously remember is conflict and, as A puts it, “crap”.

Since 2017, the parents have shared the care of their boys. A and B would live one week with dad and one week with mum. They all lived in London and attended school in London. Mum and dad each had a home in London, close to each other and close to the school. In 2018, an order was made confirming that arrangement.

Mum wasn’t happy with that order, and made details of the case public, through an on-line petition. She included a clear picture of her face, and was highly critical of the legal system and the social worker. She described dad as a narcissist and a sociopath.

In 2020, mum bought a house in Somerset. That is where she hails from, and where she has family ties. Indeed, prior to the separation, mum and dad intended to move there together. The pandemic hit, and the boys spent increasing amounts of time with mum in Somerset, where they attended school remotely. They joined a local rugby club and Sea Scouts and began to be integrated into the local community. At the end of the pandemic, although they returned to the week on/week off arrangement, they would travel with their mum to Somerset every other weekend – a round trip of several hundred miles.

Eventually, mum sought to change the shared care arrangement, and each parent issued an application for a child arrangements order. They each wanted the boys to live with themselves, and to spend time with the other. Mum’s application was based on the boys relocating permanently to Somerset.

At first glance, the Cafcass officer, Ms Ingram, appears to support mum’s application, but on closer inspection, her support is so heavily caveated that the judge had no difficulty in both agreeing with it and making an order which went against it. In her report, Ms Ingram said:

… it is my assessment that the Court should grant [mum] permission to relocate. As has previously been stated, it is imperative that [the boys’] relationships with their father … are not only maintained but actively prioritised and promoted by [mum].

In evidence, Ms Ingram told the judge that her recommendation was very finely balanced, and was based on mum supporting and nourishing dad’s role in the boys’ lives. It would be difficult, Ms Ingram said, to recommend the boys’ relocation to Somerset if adequate measures were not in place to protect and promote their relationship with dad.

Child Arrangement Order Decision

Ultimately, the judge decided that it would not be possible for mum to nourish the boys’ relationship with dad. She could not be trusted to put the boys’ needs ahead of her own. The boys’ relationship with dad was a key part of their emotional needs, and she could not be trusted to recognise and support that. She had deliberately undermined the 2018 shared care order by buying a house in Somerset and integrating the children there, attempting to present this judge with a fait accompli. Accordingly, the judge could not support her application to relocate.

There is nothing particularly unusual about this case; indeed, its facts will be familiar to many lawyers and parents alike. Parents locked in dispute about what is best for their children; sometimes one or both unable to see the impact on the children of continued conflict; unable at times to put the children’s interests ahead of their own; unnecessary referrals to police and children’s services; genuine, but misplaced, beliefs about what actually is best for these children; and – horrifically – no way out.

It is the footnote to the case which has – rightly – attracted attention. That is, the letter from the judge to the children, which appears as an appendix to the judgment. It is so thoughtfully written. Indeed, the judge even determined when and by whom it should be given to the boys – by dad on a camping trip at the end of the summer holidays – a time and a place in which they would be safe and happy, and supported in accepting the decision made for them.

“Your mum and dad have asked me to make decisions for you both about where you should live,” says the judge in his letter to the boys, making it clear in a sentence that:

• They have not been asked to choose
• They are not responsible for making the decision
• If either parent is hurt or unhappy, it is not their fault

“I hope you both understand that I have made the decision and not your mum or your dad. Judges sometimes have to make decisions when parents cannot agree,” he adds. So even mum and dad aren’t responsible. Neither of them can be the bad guy.

“I have made this decision after considering who you both are, what you both need and things like your education, happiness and your welfare,” says the judge, referencing the matters in the Children Act 1989 he is required to consider, and making it clear that his decision is about them, no-one else.

“I have decided you need each other – I think you are good brothers to each other.” For some reason, this feels particularly poignant – perhaps because throughout the vast majority of their short lives, the only person these boys could rely upon was each other. They are reassured that they will not be separated, and that they have done nothing wrong.

“I have also asked your mum and dad to behave a bit better. I know you both find the arguing that happens between them difficult. Although it is a naughty word, A, you are right to describe it … as ‘crap’. I have told your parents to stop the ‘crap’.” In saying this, I feel sure that the judge was not overlooking the huge amount of distress suffered by parents locked in these situations, nor how genuine their motivations in pursuing what they understand to be their children’s best interests. But children do not need to know any of this stuff, and they should not be exposed to the crap.
So the judge continued the pre-existing shared care arrangement. He felt that mum would accept this, now that it was clear that she was not going to be allowed to relocate the boys to Somerset.

He was reassured that she had said that she would not leave the boys in London, and that she would relocate there herself. Really importantly, he decided that the boys should not travel to Somerset on alternate weekends. Their Somerset home and life should be reserved for holidays, Christmas, Easter and the occasional weekend. This feels from the judgment like exactly the right balance. The boys will continue to have both parents playing equal and important parts in their lives. Life in two homes, rather than in three, will be somewhat less complicated. Perhaps communication between mum and dad may start to improve.

We’ll leave the family there. These boys, although they would not have chosen to be in this position, are happy, healthy and well-educated. Most importantly of all, they have two parents who clearly love them dearly and who, in the words of the judge have so much to offer them.

If you have any children related issues please visit our Children Law page of our website to find out how we can help you including advice around a child arrangement order. Alternatively get in touch with a member of our Family team for a chat about your situation.