S (Children), Re

In appeals concerning child residence or contact, the Court of Appeal must not substitute its own view merely because another outcome is possible. Intervention is justified only where the lower court’s decision is plainly wrong or outside the generous ambit within which reasonable people may disagree. A welfare decision may properly keep siblings together, preserve a young child’s placement with the primary carer, and reintroduce or increase contact gradually when the circumstances call for a cautious approach. Allegations of concealed facts or changed circumstances do not necessarily justify an appellate rehearing, especially where an imminent review can provide a fuller and more timely investigation.

After the marriage broke down and the parents separated, the father sought permission to appeal two orders concerning residence and contact for the two children. HHJ Russell-Vick QC ordered that the mother have residence and set staged contact, including staying contact for the older child but initially visiting contact for the baby. Johnson J later made alternative graduated arrangements after the holiday contact plans failed and contact stopped. The father challenged findings about domestic violence, the court welfare officer’s evidence, the assessment of his conduct, and alleged concealment of a new relationship and a school change. The central issue was whether either order was plainly wrong.

Lord Justice Ward gave the only judgment. He dismissed both applications for permission to appeal.

1. Appellate restraint. The Court of Appeal could not intervene simply because it saw two possible views. It could interfere only if the decision exceeded the generous ambit within which reasonable people were entitled to disagree, making it plainly wrong. The appellate hearing was not a rehearing of disputed evidence.
2. Residence. The conflict between the father and the welfare officer did not establish perjury or make the trial judge’s findings unsustainable. The judge was entitled to regard the baby’s recent six months with the mother, and her role as primary carer, as favouring continued residence with her. He was also entitled to keep the siblings together rather than move the older child alone. That was a conventional and tenable welfare assessment, not a plainly wrong exercise.
3. Contact. The initial order reasonably distinguished between the older child’s established relationship with the father and the baby’s age and limited recent contact. On the later application, Johnson J was entitled to take account of the breakdown in arrangements, the father’s failure to maintain contact and the effect on the older child. Applying the paramount interest of the children, he could adopt a careful and sensitive progression from visiting to staying contact, with review. The harshness of his criticisms did not itself justify appellate intervention, particularly as the assessment was for him to make on the evidence he heard.
4. Further investigation. The allegations about the school change and the mother’s living arrangements did not justify permission. A rehearing in the Court of Appeal could not occur before the scheduled county court review. The appropriate course was therefore to leave the matter for that review, place the judgment before the reviewing judge, direct a fresh court welfare officer assessment, and give the father an opportunity to raise the matters. Copies were sent to the county court and to the applicant at public expense.

• Court of Appeal (Civil Division): On 27 September 2000, Lord Justice Ward dismissed both applications for permission to appeal. The judgment was directed to be sent to Canterbury County Court and provided to the applicant at public expense: [2000] EWCA Civ 413.
• Canterbury County Court: HHJ Russell-Vick QC made the residence and initial contact order on 10 December 1999. Johnson J made a later contact order on 15 May 2000. The judgment records no separate citation for either order.