C (A Child), Re

In a residence dispute, the child’s welfare is the primary consideration. The child’s wishes and feelings must be taken into account, but they do not displace welfare and must be assessed for their depth and consistency. Where family-life interests conflict, the child’s welfare takes priority. An appellate court should not interfere with a trial judge’s welfare determination where relevant matters have been considered and the conclusion is clearly explained, even if the appellate court might have assessed the case differently.

Following the parents’ separation, the three children became divided between them. The mother later obtained permission to relocate to Norway with the two younger children, but one child returned to live with the father. The father then applied for a residence order concerning the youngest child, D, seeking to reunite the brothers.

His Honour Judge Carr concluded that D’s welfare was best served by remaining with his mother. The father sought permission to appeal, arguing that insufficient weight had been given to D’s wishes and feelings and to rights under Articles 8 and 14. The central issues were whether the judge had properly assessed D’s welfare and whether the Human Rights Act altered that approach.

Application for permission to appeal dismissed. Lord Justice Thorpe held that the trial judge had reached a clear and fully explained welfare determination, based on his assessment of the parents and the evidence concerning D.

1. The judge had properly applied section 1(3) of the Children Act by taking account of D’s wishes and feelings. He was entitled to assess how profound those feelings were and whether D’s words reflected his true position.
2. The judge was entitled to conclude that the father had encouraged D to believe that the move to Norway was temporary, thereby contributing to D’s emotional disturbance. He also considered the recommendations of the Official Solicitor and three court welfare officers, the children’s relationships, and each parent’s ability to meet D’s needs.
3. The Human Rights Act had no particular impact on the welfare assessment in this case. If respect for the family life of one family member conflicted with respect for that of another, D’s welfare had to take priority.
4. The Court of Appeal could not interfere merely because the trial judge might have been wrong in his assessment. The evaluation of welfare and parental personalities was principally the province of the trial judge, and no relevant matter had been omitted or irrelevant matter considered.

The application for permission to appeal was dismissed. A transcript was ordered to be provided to the applicant at public expense.

• Court of Appeal (Civil Division): application for permission to appeal dismissed: [2001] EWCA Civ 1342.
• Newcastle upon Tyne Crown Court, Family Division: His Honour Judge Carr determined that D’s welfare was best served by a residence order in favour of his mother.