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02 MAY 2007

RESIDENCE: Re H (Residence Order)

(Court of Appeal; Thorpe LJ and Coleridge J; 2 May 2007)

The parents had contested residence, each making allegations against the other. The judge found that none of the allegations against either parent had been proved. The two children were to reside with the mother, with contact to the father on alternate weekends. When the father came to collect the children for one of the contact sessions the elder child was unwell with an abscess; the mother asked the father to let the child remain at home, but the father insisted on taking her away. The child's condition worsened during the day, and the father took the child to hospital, where she was treated as a medical emergency. The father refused to return the children to the mother on the basis that the mother was neglecting the children. The judge considered that the father's allegations of neglect were unfounded, but that the children should remain with him on an interim basis.

The mother's appeal was allowed. There had been no compelling reason for the change of residence from the mother to the father. The judge had failed to apply the principle set out in Re K (Interim Residence Order) [2004] All ER (D) 276 (Dec) that an interim change of residence could only be justified if it was in the interests of the child, or that there was otherwise an emergency that required intervention.

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