In the matter of D (a Child)

Permission to appeal may be granted where there is an arguable challenge to a material factual finding, especially where agreed medical evidence appears inconsistent with that finding. The appellate court should consider whether the finding may have affected the welfare assessment.

There is no rule that a mother is automatically entitled to reside with a young child. Fathers, including working fathers, may be capable primary carers. Permission does not indicate that the appeal will succeed.

The mother renewed an application for permission to appeal after her first application was refused on the papers. The application arose from an order made by His Honour Judge Cliffe at Huddersfield County Court on 14 September 2000, directing that the parties’ two-year-old daughter, M, should reside with her father.

The proposed appeal challenged findings about the mother’s health and capacity to care for M while expecting another baby, together with the weight given to the competing care arrangements.

1. Permission granted. The renewed application disclosed an arguable case that the judge had made an unsupported finding about the mother’s ability to care for M full-time while expecting another baby. The finding relied on her stroke, hospital admission and history of post-natal depression.
2. The agreed medical evidence appeared to point in the opposite direction. It indicated no present physical or mental unfitness and suggested that the mother should be able to manage the care of her children in the foreseeable future. It was therefore arguable that the judge had wrongly found the facts.
3. It was also arguable that the challenged finding had materially affected the welfare assessment. The court could not determine at the permission stage whether correcting the balance would make the judgment unsustainable.
4. Other matters were capable of argument when considered together, including the child’s young age, uncertainty about the father’s proposed care arrangements and possible excessive emphasis on the status quo.
5. The court emphasised that mothers have no automatic entitlement to reside with their children. Fathers, including working fathers, may be capable of caring for young children, including young girls. The grant of permission should not raise the mother’s expectations.

• Court of Appeal (Civil Division): On the renewed application, permission to appeal was granted in [2000] EWCA Civ 402.
• Huddersfield County Court, Leeds Trial Centre: His Honour Judge Cliffe ordered on 14 September 2000 that M should reside with her father.