Neutral Citation no. [2001] NIFam 11
Ref:     
HIGF3416

 
Judgment: approved by the Court for handing down
Delivered:
1.5.2001
(subject to editorial corrections)

 

 

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
FAMILY DIVISION
 
 ________ 

 
BETWEEN:

MQ
Applicant;
 
-and-
 
BQ
Respondent.

2000/47
RE:     CLQ
CPQ
 _________ 
HIGGINS J
This is an application for a residence order by MQ in respect of her two children CL and CP.  The respondent is her husband and the children’s’ father.  CL was born on 10 May 1992 and CP was born on 6 January 1995. The couple married on 22 June 1991.  The respondent (hereafter referred to as the father) comes from Ardboe in County Tyrone and the applicant from the Antrim Road, Belfast.  The first two years of the marriage were spent in Ardboe and then they moved to Glengormley.  The respondent is a joiner by trade who worked all the hours he could.  In 1997 he obtained employment in Dublin where he earned substantial sums of money, much of which was sent to their bank account in Northern Ireland.  Initially he worked week-days in Dublin and returned at the week-ends.  Then his return trips became less frequent, probably because he could work part of the week-ends in Dublin as well.  The couple had lived a quiet life in Glengormley, consistent with the respondent’s attitudes and way of life.  He did not socialise much but worked around the house or did odd jobs for other people.  The applicant always socialised on one night a week with her sister or friends.  With the respondent in Dublin, life in Glengormley became lonely and she began to go out more often with her friends.  She began drinking and at some time experimented with drugs.  She went on shopping and spending sprees and spent a substantial amount of his hard-earned money.  Her appearance changed as well as her style of clothing.  Eventually she saw another side of life she had not experienced with him and she realised the marriage was over.  She spent a lot of time on the phone, ringing in particular a telephone number in Larne which belonged to a male friend called PC.  The father returned home in early May 1998 for the week-end and she told him she wanted a separation.  He thought she was having an affair, a belief which grew and persisted probably to this day.  I do not think she was in a serious relationship with another person at that time.  When she asked for a separation a row developed and he struck out and she called the police.  He returned to Dublin for one day and then returned.  There were constant arguments. She moved out to a hotel for three days and returned.  Eventually he went to stay with her parents and then her sister and obtained employment in Belfast.  Throughout this period there was no discussion about the children.  She had assumed she would stay in the house with the children and that he would return to Dublin.  The house was in his sole name.  He consulted a solicitor and in June returned to the matrimonial home and announced he was moving back whether she liked it or not.  His solicitor drew up an agreement which she signed against the advice of her solicitor, “ to get out of the marriage”.  She was probably in debt and in need of money.  She signed the agreement in his solicitor’s office and was given £2000 that day.  It was a clause of the agreement that the children would remain with him. She believed, not without justification, that he did not really intend to keep the children.  She had been their main carer since birth.  She did not think he would give up employment.  Throughout this period, and not for the first time as transpired, she underestimated his determination that she would be punished for having an affair and breaking up the marriage.  On 2 August she left him a note that read – 
“B, I really was prepared to try and make out marriage work.  I agreed your terms of me only going out 2 nights a week.  I really was sorry for everything that happened.  It’s all in the past & can’t be changed and I don’t want my little children hurt anymore.
 
* For the record I did not have an affair. Its up to you now, but I am truly sorry and maybe some day who knows” 
 
She rented a flat near Belfast Castle and told him she was moving in a few week’s time and taking the children.  He said she was not having the children and thereafter he became ‘nasty’ towards her.  Throughout the period to 1 September she looked after the children and cooked all the meals for everyone.  On 1 September an argument developed.  He called the police and took the children to his van.  He showed the police the agreement and they told her she would have to abide by it.  Thus began a period in her life in which she lived alone, found consolation in alcohol and experimented with drugs.  Contact with her children was sporadic often when they were at her mother’s house.  Attempts by her to see the children were often unsuccessful and she reacted to what she saw as obstructive conduct by the respondent.  Occasionally he would resort to calling the police.  By February 1999 the applicant was in such a state that her mother arranged for her to receive psychiatric treatment, the details of which were not disclosed.  The applicant’s circumstances throughout this period were not consistent with her having an affair before May nor one which then continued after 1 September despite the itemised telephone account which might suggest to the contrary.  
After the separation the father’s relationship with her parents remained good.  He regularly brought the children to see their grandparents and would leave them with them, perhaps when it suited him.  By the end of the year or beginning of 1999 this began to change.  The reason for this was his undisclosed intention to leave Glengormley and return to live in Ardboe with the children.  When this became apparent it had a grave effect on all the relationships and, as it transpired, serious consequences for the children.  An application for a prohibited steps order, to prevent the children being removed from their school, was made ex parte at Belfast Family Proceedings Court and was granted on 9 February 1999.  On 22 February and 15 March interim contact orders were made making provision for week-end and midweek contact for the children with their mother.  Meanwhile the issue of the move to Ardboe was generating much acrimony between the parties and between the father  and the mother’s family.  At this time both children had a good relationship with their maternal grandparents who had cared for them frequently.  They had little contact with Ardboe or his family there.  He was not prepared to wait until the end of the school year.  It was claimed the house had to be sold to discharge debts.  The learned RM requested that the children be brought to court to enable him to speak to them to ascertain their views.  The RM saw the children in his chambers with none of the parties or their lawyers present.  The outcome was that a further interim contact order was made to expire in June and the respondent was permitted to take the children to Ardboe, which he did at the end of March.  The children were then aged 6 years and 10 months and 3 years and 2 months.  I find it difficult to think of any circumstances which would justify a Judge or a RM interviewing children of such ages about such important matters as where and with whom they should live and what contact, if any they should have with a parent.  Whilst the circumstances of this case were by then difficult I can find in them nothing which warranted this unprecedented step.  Over the next 18 months the case became even more difficult, yet it did not warrant a repetition of this involvement of the children.  The removal of the children to Ardboe had a devastating effect on the relationships between the parties and was the catalyst for much of what occurred later. 
There is no doubt that both parents love their children very much.  The mother I perceive to be a very warm loving mother.  She can be very hot-headed, volatile and reacts without thinking.  From performing the role of a loving and caring mother of her children, she suddenly found herself cast out from their lives.  She perceived barriers being placed in the path of a resumption of contact with them.  She reacted to this and in the process made matters worse.  She has made many mistakes, for some of which, at least, she is regretful.  She can be impulsive and inclined to the attitude that she can do what she likes and that she knows what is best for her children.  A frequent and understandable claim was – “ they are my children, I gave birth to them and I should rear them “.  She underestimated her husband greatly.  Based on his past involvement with the children she reckoned, not without some justification, that he would not wish to care for the children full time.  However, she underestimated his reaction to her wish to separate and in particular his immediate and continuing desire to punish her for what she did, for what he believes she has done and generally, for ruining what he considered to be a happy marriage.  Having obtained her agreement to the children residing with him, he has systematically done everything in his power to ensure that they remain with him.  He is a complex man who presents different personas depending upon the person or authority he is involved with and depending on the circumstances at any particular time.  He has with some subtlety engaged the assistance of social services, the police and doctors to aid his case and, more significantly, in attempts to damage hers.  On occasions he has used the children to this end.  He can be economical with the truth when it suits him (as can she), but where his wife has been shown to have acted wrongly, he is ruthless in his pursuit of any advantage to be gained from it.  On the other hand he has looked after the children since September 1998 without any real criticism.  However he is aware not to have done so would have damaged his case.  He is driven and obsessed with his role as carer and his aim that the children should not reside with their mother.  He was at his most disingenuous when he declared that his wife should be grateful to him for stepping in and taking care of them.  While she has, at times, acted wrongly and foolishly, her ability to be a mother and carer of the children could not be doubted and he accepted, that before the separation this was so.  Both of them have the capacity to provide for the needs of the children.
Following the move to Ardboe contact, became fraught.  He claimed the children did not wish to see their mother.  This was a constant claim by him.  I am not satisfied that this was a really genuine claim by the children.  They may have said it on occasions and shown reluctance to go to contact, however I consider the roots for that lie principally in what these children were told by the respondent in the weeks and months following the parents separation.  The actions and comments of the applicant probably played a part in the views expressed by the children.
Eight days after the applicant moved out, the respondent obtained a medical certificate that he was unfit for work as well as disability living allowances in respect of himself and the children relating to asthma.  He alleges he has not worked since.  He appeared quite healthy to me and I strongly suspect he has been employed from time to time or part-time, in a manner which, with the assistance of members of his family, has permitted him to look after the children.  Why (other than for the benefits available) he and the children required to be on disability living allowance, in the light of the evidence about the degree of asthma by Dr McCammond, was never fully resolved.  More significantly he allowed the children to go to overnight contact with their mother without telling her that they had been prescribed inhalers and that they were (allegedly) in their overnight bags.  I strongly suspect that both children but in particular CL underwent a reaction to the departure of their mother who was their main carer from birth.  Shortly after they arrived in Ardboe the respondent took them to see Dr McCammond who wrote a letter on his behalf.  This was presented to the RM. The letter reiterated the concerns as expressed by the respondent.  The doctor requested that a report be obtained from a social worker.  That letter would have had the effect of presenting the respondent to the court as a father concerned about his two children and the two children with a genuine problem relating to contact with their mother.  It is not without significance to this court that at no time since the couple separated has any problem occurred when the children have had contact with their mother, that is when they are with her and in her company.  The problems have all allegedly occurred either in the build up to contact or at the time of the handover.  This is clearly significant.  
The children moved to live in Ardboe with their father during the Easter holidays at the end of March 1999.  Between then and mid-November 1999 frequent difficulties arose over contact and there were many court hearings on the issues.  Social Services became involved and attempts were made to arrange contact at Cookstown Social Services office.  On 25 May 1999 the RM directed, under Article 56 of the Children (NI) Order 1995, that the Trust investigate the circumstances relating to the children and a Guardian ad Litem was appointed. The GAL was helpful to the parties and the court in attempting to resolve contact issues.  However, I doubt if it is correct for a GAL to be appointed by a Family Proceedings Court when an Article 56 investigation alone is directed, without more.  Following the Trust’s report to the Court on foot of the Article 56 investigation a consultant child psychiatrist Dr Richard Wilson was requested to consider the children’s circumstances.  He reported on 11 November 1999 following which the case was transferred to the Family Care Centre and immediately transferred to the High Court on 29 November 1999.  It seems clear that, by the Spring of 1999 (and before the direction under Article 56), the circumstances of this case were sufficiently grave, to justify the transfer of the case upwards, at least to the Family Care Centre.  On 11 June 1999 the Trust applied that contact between the children and their mother be suspended.  This application was granted.  The proceedings before the Family Proceedings Court were private law proceedings to which the Trust was not a party.  Therefore the Trust could not, in the absence of an interim or full care order, make any application relating to contact between a parent and child nor had the Trust power to apply, as it did in September 1999, to have the case transferred to a higher court.  On 1 December 1999 the names of the children were placed on the Child Protection Register under the category of suspected emotional abuse.  This arose from the contact issues between the parents and Dr Wilson’s report.  On 9 December the Trust applied for an interim care order in respect of both children.  On 20 December an interim care order was made on consent with  the children to reside with their father.  Contact arrangements were made but were not entirely successful.  On 4 February 2000 the Trust refused the applicant contact with the children.  On 14 February the Trust was granted leave to withdraw the care proceedings, it then being evident that there was no risk of the children suffering any significant harm within the terms of the Children Order which would justify a care order.  The Article 56 investigation order was also discharged.  By this time it was also evident that the applicant was in a serious relationship with PC who resided in Larne and had been the recipient of the many phone calls noted in the telephone bills. Further contact arrangements were put in place, which were to exclude PC from remaining overnight in the home when overnight contact was taking place.  The presence of PC was an additional complicating factor in an already difficult case, particularly for the children’s father.  The emphasis was now on restoring contact between the children and their mother on a regular basis and the case came before me on a number of occasions for directions and interim hearings.  Sadly events did not run smoothly.  Over the week-end of 25 February the mother took the children to Aberdeen with PC.  This was contrary to the terms of the interim contact order then in force.  When the father discovered this, he immediately applied to have contact suspended.  I acceded to this application as the mother was in breach of, at least, the spirit of the court order.  The mother left the court in high dudgeon at his successful application.  He probably left feeling pleased with the outcome.  An altercation arose outside the court during which she struck him.  He made a complaint to the police and applied for and obtained a non-molestation order ex parte.  On 13 March a further interim contact order in the same terms as before was negotiated and then made, as was an interim residence order in favour of the father.  Following the court hearing the mother was arrested outside the court on foot of his complaint of assault and threats to kill.  This exacerbated the situation further.  The father agreed to withdraw his allegations against the mother only when she consented to a full non-molestation order.  Throughout this entire period the mother was very volatile and emotional and generally ‘worked up’ about her lack of contact with her children and what she perceived to be obstruction on the part of the father.  I have mentioned this incident in some detail as it typified what subsequently occurred and mirrored some of the earlier incidents when the applicant resorted to the authorities at any opportunity.  There then followed a series of attempts to reinstate contact on a regular basis. Some were successful but the period between mid-February and September 2000 was punctuated by number of incidents, (a few of which only I shall deal with), which frustrated the efforts being made to resolve the contact issue.  At all times there was in the background the mother’s application for a residence order which required to be heard when the time was right.
Throughout this whole period social services were involved to a considerable extent.  The father had agreed to undergo a course with Cookstown Social Services.  He applied himself assiduously to this and at times too assiduously.  He contacted social services with every little complaint or issue and sent them any documentary material that, in his mind, might be relevant to his case.  I suspect strongly he became a bit of a nuisance from time to time, though occasionally there were issues of concern to be dealt with.  However I am satisfied that he was motivated throughout by a desire to do what would be considered best for his children and what would be considered appropriate by social services and the court and at the same time to improve his case and if possible to damage any case made by the mother.  She also engaged in a course with her local Trust, which was not completed.  It would appear that a difference of opinion or emphasis arose between her Trust and Cookstown Social Services who arranged the work and this contributed to its non-completion.  Social Services had little criticism of the father.   This was probably because he made every effort to please them and they could find no obvious fault with him.  He is able to cater for the all the childrens’ physical needs.  While Social Services did not articulate any specific criticism of him, I believe they were never entirely convinced about his genuineness.  They lacked hard evidence to comment upon.  I am not inhibited in the same way.  By contrast Social Services found much with fault with the mother, principally her attitude towards her husband, towards contact and with the involvement of social workers.  She did make things difficult for herself particularly prior to the summer of 2000.  In June she discovered she was pregnant.  I am not convinced this was a planned pregnancy.  I think she realised the potential implications of it for CL and CP and said as much to the social worker she sought out at the end of June 2000 for advice.  When she gave evidence during the hearing she was quite calm and controlled, by contrast with the earlier history.  She stated that she has learnt to cope with the situation and in particular no longer allows her husband to provoke her as he did in the past.  I am satisfied that this was genuine.  His evidence was characterised by evasion and refuge in long statements about his wife’s failings.  In a lengthy cross-examination by Miss Ramsey BL, his character and attitudes were painstakingly exposed. 
After the Aberdeen incident contact was arranged for the weekend of 31 March 2000.  The mother arrived to collect the children at his house.  CL displayed some reluctance to go with her mother and an incident occurred between them during which CL sustained some minor injuries to her upper body, probably caused by the strap of the bag she was carrying on her back.  These minor injuries were not caused  by the mother intentionally.  The father who witnessed the incident took the opportunity to call off the contact.  He then called the police who were obliged to carry out an investigation and in addition he photographed the injuries.  These were steps that were totally unnecessary in the circumstances and only caused the incident to have more importance in CL’s mind than was justified.  Social Services were also informed. No charges were ever preferred.  Again the father made the most of this incident.  Miss Ramsey cross-examined the father at length about the hours leading up to this incident.  CL did not go to school that day and according to the father was anxious about the contact.  He attempted to make contact with Social Services.  I remain unconvinced that the attitude displayed by CL that day, was not largely contributed to by the actions and words of her father earlier on that day.  Two other incidents left me with the same conclusion.  In order to facilitate contact arrangements were made for handovers to take place in Toome at a Filling Station close to Toome RUC station.  On each occasion the father arrived with the children in the back of the car and the mother was already present.  He left the car and went into the shop attached to the Filling Station leaving the children alone in the car.  He proceeded to watch what occurred from the shop.  The children refused to leave the car and the mother over-reacted whereupon he called the police.  His evidence did not satisfy me that he did not initiate or contribute to what occurred.  While he may state that the children should see their mother, he did not impress me as someone who genuinely believed that or that he would actively facilitate it.  I appreciate that he was dealt a severe blow when his wife announced that she wanted a separation, but since their separation he has not accepted that his wife has established a new relationship and that he has to adapt to that situation for the sake of their children.  The emergence of PC as an important figure in his wife’s life has created further tensions.  The father is reluctant to accept that the children should be in his company. Hence when the children reported his presence overnight in Larne in July 2000 in breach of the contact order, he brought the case straight back to court and wished contact to be suspended.  The role of PC creates further difficulties.  Should the children be returned to live with their mother what form would their relationship with PC take?  Would that undermine their relationship with their father?  What effect will the new child have on all those relationships?  Will this relationship last?  The mother believes so.  In addition PC has a teenage daughter by another relationship who lives elsewhere in Larne.  Answers to those and other similar questions, which would arise should the children be returned to their mother, might have been answered if PC had given evidence.  He made a statement and it appeared that it was intended that he give evidence.  The case was delayed to allow the mother to go into hospital to have her baby.  Then PC contracted a serious chest infection.  He is employed as a marine diving engineer on oilrigs and a chest infection would be a serious ailment in that employment.  The case was adjourned on several occasion to enable him to recover from his illness and then to give evidence.  After several adjournments Miss Walsh (with whom Miss Ramsey appeared on behalf of the mother) announced that he would not be giving evidence.  No explanation was given.   Naturally this gives rise to concern about the future and the mother’s position, should the children be returned to live with her. She hopes to return to her full time employment.  Her plan is that the children reside with her and PC in Larne.  She would take them to school in Belfast on her way to work.  When they are old enough they would attend school in Larne.  It would be her intention that they attend a Catholic school in Larne, though PC is not a Catholic and they would live in a non-Catholic area in Larne.  The father is concerned about the children living in Larne due to recent sectarian attacks on Catholic families in that area.  This may be another example of his over-reaction or perhaps his desire to take advantage of every conceivable point, in order to defeat his wife’s case.  However the mother is not without blemish and as in many of these cases, there is fault on both sides. 
Where a court determines any question with respect to the upbringing of a child the welfare of the child shall be the court’s paramount consideration – see Article 3(1) of the Children (NI) Order 1995.  This is so, to the exclusion of the wishes or fears of either or both parents. In addition, when a court is considering whether to make, vary or discharge an order made under Article 8 of the Children Order, in this case residence and contact orders, the court shall have regard in particular to various matters set out in Article 3 (3) of the Order, known as the Welfare Checklist.  These seven matters are not always relevant, but where they are they must be considered.  However they are not exclusive of other relevant matters, nor is any one of them more important than another.  At the conclusion of the case, the question for the court must be – which course will best serve the interests of the children. 
CL and CP are now aged eight and five years of age.  They have expressed views in the past about both parents.  I do not consider their age and understanding is such that the court should have regard to their ascertainable wishes and feelings to the point that they could be determinative. 
The physical needs of both children could be met by either parent.  The emotional needs of children as young as this are often best met by their mother, who is usually the main carer.  That general proposition does not apply should the children’s best interests be served by them living with their father.  In the period after 1 September 1998 these children experienced an emotional reaction to the absence of their mother.  How that absence was explained to them may have much to do with such reluctance as they showed from time to time towards contact with their mother.  The actions and words of both parents in the presence of the children will have affected them to some degree.  There is no evidence that the father has not catered for their emotional needs over the last 2 years.  While the arrival of another child with a different father can give rise to difficulties I have no reason to doubt the mother’s capacity to provide for the emotional needs of both children. 
The children’s educational needs are presently catered for in Ardboe.  According to Mr Foley the headmaster of their school they are both above average and are doing well.  He described the father as a good parent and said that the children’s attendance at school was good and their homework was always done.  If they were to reside in Larne their mother would wish them to attend the school they attended before in Belfast.  Whilst no detailed arrangements have been made for their education I do not doubt that she would make the appropriate arrangements. 
Both parents are capable of meeting the needs of both CP and CL.  How capable PC might be, is not known.  However, their mother would be their primary carer should they return to live in Larne.  I do not consider that either child has suffered significant harm nor are they at risk of doing so should they reside with either parent.  The parents’ problems are with each other and not with the children.  There are no unusual characteristics about the children that require separate consideration. 
What is the likely effect of any change in their circumstances ?  The children have lived with their father, initially in Glengormley and recently in Ardboe, since September 1998.  They have settled in their new school and by all accounts enjoy the opportunities that proximity to their grandparents’ farm and the countryside provide.  To return them to live with their mother would not be to return them to what they knew before, even if they remembered it.  It would be to Larne with their mother and her new partner and into the midst of an adult relationship, the stability of which has yet to be firmly established.  On the other hand it would be a return to their mother with whom, upon their parents’ separation, they, as young children, would have gone to live, in normal circumstances.  One of the unusual features of this case is that in July 1998 the mother was party to an agreement, which signified that the children should reside with their father.  It was argued on behalf of the father that her reason for doing so was purely selfish.  I doubt if it was as simple as that.  Nonetheless it is a fact from which certain consequences flow.  Any capable mother, with young children, has a strong claim to have them reside with her following separation from her husband. That strong claim, which in earlier times would have been regarded as a presumption, will not prevail if there are good reasons to the contrary and if it is in the childrens’ best interests that it should not be so.  Are the claims of the mother in this case, strong enough to reverse the status quo which has persisted for two and a half years, when that situation came about as a result, partly, of her agreement and when the father’s care of the children in that time cannot be seriously faulted.  The answer to this question has to be considered in the context of what is the best course of action from the childrens’ point of view.  Should they be uprooted, once more, and sent to live, not where they lived before, but to Larne and into a relationship that may not be, at this time, firmly established.  The words of Lord MacDermott in J v C 1970 AC 668 at page 715 are apposite – 
“Some of the authorities convey the impression that the upset caused to a child by a change in custody is transient and a matter of small importance.  For all I know that may have been true in the cases containing dicta to that effect,  But I think a growing experience has shown that it is not always so and that serious harm even to young children may, on occasion, be caused by such a change.  I do not suggest that the difficulties of this subject can be resolved by purely theoretical considerations or that they need to be left entirely to expert opinion.  But a child's future happiness and sense of security are always important factors and the effects of a change of custody will often be worthy of the close and anxious attention which they undoubtedly received in this case.”
 
This is the core issue in this case.  If the status quo provides stability and security and is otherwise suitable, should a change be made in the childrens’ primary residence.  I have already commented on the relationship between the mother and PC.  Another factor is the relationship between the children and their mother.  That relationship has been strained over the last few years, to say the least.  I accept that the children have a good relationship with their mother when they are with her, but recently this has only been for short periods of time.  I do not think that their former relationship has yet been restored.
In their detailed and well constructed skeleton submission, Mrs Q and Miss Gregan referred me to several other cases which provide guidance on the proper approach in cases of this type. In Re G (a minor) (custody) 1992 FCR 279 it was ordered that two children should reside with their father.  The judge at first instance said 
“In deciding who should have custody of [the child] the paramount consideration is, of course, the interest of the child…as a matter of common sense where a child aged 4 has been in the effective custody of one parent since his birth there must, in my judgment, be a presumption against disturbing the status quo and so, as a matter of evidence, if not strict law, the onus is on the father to convince me that it is in [the child’s] best interests to be moved from the mother’s home to the father.”
 
Upholding the judge’s decision Balcombe LJ in the Court of Appeal commented on this passage and stated – 
“I would agree that this is not a matter of a presumption in the legal sense but, nevertheless, when dealing with the custody of small children undoubtedly, as a working rule, one does not disturb the status quo unless there is good reason to do so. 
 
Bingham LJ (as he then was) at page 284  referred to “ the natural reluctance which any court has to disturb a more or less satisfactory status quo”.
S v W 1981 Fam. Law 81 was a case concerning the residence of two boys.  In the course of giving judgment in the Court of Appeal Ormrod LJ said at page 82 - 
“… the status quo argument depends for its strength wholly and entirely on whether the status quo is satisfactory or not.  The more satisfactory the status quo the stronger the argument for not interfering.  The less satisfactory the status quo the less one requires before deciding to change.”
 
In Re B (residence order: status quo) 1998 1 FLR 368 Thorpe LJ, in deciding that the judge was wrong to order the transfer of a child to his mother when he had been cared for by father as main carer for two years, said at page 371 - 
“The overwhelming factor for securing a child's future was the status quo.  The difficulty in contact simply had to be endured and tackled by whatever means were available.”
 
In Re B (a minor) 1983 4 FLR 684 Sir Roger Ormrod ( as he then was ) in commenting on a shared residence order where the parents lived a considerable distance apart said at page 684  – 
“it seems to me to run counter to the most fundamental rule of child care, which is that stability is all-important and the maintenance of some kind of routine in crucial.”
 
What these cases illustrate is the importance to be attached to respecting the status quo and providing stability in the lives of children from broken families. 
In late September 2000 the Cookstown social worker responsible for the case, brought to the attention of the court, quite properly in my view, information which she had received from the police.  On a Sunday evening early in September the children returned home from week-end contact with their mother.  The father prepared them for bed.  According to his account he received, at short notice, an invitation to go out with friends.  He took the children to his mother’s home, to spend the night and he arranged to collect them in the morning and take them to school.  He returned home in the early hours of the morning with a young lady who was, allegedly, heavily intoxicated.  The next day or the following day she made a complaint to the police that she awoke in his house to find him having sexual intercourse with her without her consent.  The father was interviewed by police officers in the presence of his solicitor.  He denied the allegation.  The complaint was then reported to the Director of Public Prosecutions in the usual way.  This court is not concerned with the truth or otherwise of those allegations.  However a decision by the DPP to prosecute and also a conviction, would have serious consequences for the children which this court would require to take into account.  This might well be the type of circumstance, which might justify the removal of the children from Ardboe, regardless of how settled they had become.  The father did not disclose this matter despite attending a case conference review with social services after he became aware of the allegation.  On one view he sought to conceal this matter and had it not been for the social worker bringing the matter to the court’s attention by way of a written report, the matter might not have been revealed before the hearing of this case was concluded.  By the time the closing submissions had been completed the matter had yet to be resolved by the DPP.  It was indicated to counsel that this court would not reach a conclusion in this case, until the DPP had decided whether or not to prosecute.  Arrangements were made for the social worker to inform the court of the DPP’s decision.  Sometime later a report was received from the social worker that the DPP had decided that the father should not face prosecution. 
In the light of all these circumstances is it in the best interests of these children that they remain with their father in Ardboe or should they return to live with their mother in Larne.  I am driven to the conclusion that to remove them now and to order that they live with their mother in Larne with PC, would not be in their best interests.  Given the history of this case, the mother has a strong case that they should reside with her.  However the length of time they have resided with their father, his care of them which cannot be criticised and the uncertainty over the mother’s relationship with PC force me to the conclusion that their interests are best served if they remain living with their father in Ardboe.  I therefore make a residence order in favour of the respondent and a contact order in favour of the applicant.  
I am far from satisfied that the mother has had the contact with her children over the last two and a half years to which she was entitled and deserved.  The good relationship that she had with her children requires to be restored, as best it can.  There is no reason why these children should not have extensive contact with their mother, including overnight contact, even if PC is resident in the same house.  The children are well aware of the new baby and who the father is.  I therefore propose that the children have contact with their mother three week-ends out of four, if the mother feels she can cope with that.  In the absence of agreement between the parties the children shall have contact with their mother on the first, second and fourth week-end in every four.  The weekend contact shall be from early Friday evening to early Sunday evening.  These children had a very good relationship with their maternal grandparents.  I heard evidence from the maternal grandmother.  She seemed an eminently sensible woman who cares very deeply for her grandchildren and I have no doubt that they reciprocated.  I therefore propose that the children shall have weekend contact with their maternal grandparents once every three months, but that such weekend contact shall not reduce the mother’s contact with her children.  Such weekend contact shall be from early Saturday morning to early Sunday evening.  I do not propose to make specific detailed contact orders at this time, but will give the parties the opportunity to consider the times of handover and pickup and the location.  The father has maintained that he is not in employment.  The mother will be returning to work. I conclude therefore that the father has more time available for travelling and the parties should bear that in mind when considering the question of the location of handover and pick-up.  In the absence of agreement on these matters the court will require to decide them.  I am far from satisfied about the father’s attitude towards contact.  Should that attitude be maintained a time might be reached when the relationship between the children and their mother could be significantly affected.  Those are circumstances which might well and indeed probably would prompt this court (and indeed any other court) to adjudge that a change of residence would be in the best interests of the children.

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
FAMILY DIVISION
 
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BETWEEN:

MQ
Applicant;
 
-and-
 
BQ
Respondent.

2000/47
RE:     CLQ
CPQ
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J U D G M E N T
O F
 
HIGGINS J
 
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