B (Minors)

An appellate court should interfere cautiously with a first-instance welfare decision reached after careful consideration of all relevant circumstances. This is especially so where the decision involves an agonisingly difficult choice and falls within the trial judge’s discretionary case-management and welfare jurisdiction. The greater the difficulty of the decision, the less readily an appellate court can substitute its own view. Fresh evidence may be admitted, but it does not justify an appeal where there is no realistic prospect that the lower court’s decision was wrong or that the order would be altered. In cases involving entrenched attachments and distressed children, enforcement by physical removal may be harmful; progressive contact may provide the more appropriate route forward.

The proceedings concerned two Nigerian boys who had lived throughout their lives with their foster parent, Mrs P. Their biological mother sought their transfer to her care, while the children resisted contact and displayed hostility towards her.

Mr Justice Singer first ordered in July 1996 that the boys should move to their biological mother, but later reconsidered the position in light of implementation difficulties and changed expert opinion. On 19 June 1997 he reversed that order and confirmed the boys’ placement with Mrs P. The biological mother sought leave to adduce fresh evidence and leave to appeal, arguing that enforcement should have included physical removal and that the judge had given excessive weight to the children’s wishes and behaviour.

1. Application for leave to adduce further evidence granted. The Court accepted that the subsequent successful meetings between the mother and the children were capable of being considered as fresh evidence.
2. Application for leave to appeal refused. Lord Justice Thorpe held that the decision of Mr Justice Singer was a discretionary first-instance decision reached after careful consideration of an exceptionally difficult welfare choice. Within the proper limits of appellate review, there was no realistic prospect that the Court of Appeal would conclude that the decision was wrong or alter the order.
3. The submission that the judge should have adopted robust enforcement, including physical removal by the Tipstaff, was treated as perilous. The Court referred to the earlier decision concerning the Zulu boy, S., but observed that subsequent developments demonstrated the disastrous consequences which could follow an attempt to override a child’s deep-seated attachment to a psychological parent.
4. The challenge based on the children’s wishes and behaviour was unsustainable. Expert opinion had materially shifted between the two judgments, and even the expert supporting return to the biological mother accepted the agonising difficulty of applying that principle in this case.
5. Lady Justice Butler-Sloss agreed that the judge’s reversal was courageous and one with which the Court of Appeal could not possibly interfere. She emphasised that the greater the difficulty of the decision, the less easy appellate intervention became. Lord Justice Thorpe’s suggestion that future progress should be pursued through successful contact and increasingly lengthy stays was endorsed as practical guidance, rather than as a condition of the order.

There was no order as to costs, subject to legal aid taxation.

• Court of Appeal (Civil Division): leave to adduce further evidence granted; leave to appeal refused.
• High Court, Family Division: Mr Justice Singer reversed his earlier residence decision on 19 June 1997 and confirmed the boys’ placement with their foster parent.
• Earlier proceedings: the judge’s July 1996 decision ordering transfer to the biological mother had already been unsuccessfully challenged.