A (Child)

In child-welfare proceedings, the child’s welfare remains the paramount consideration under the Children Act 1989. An appellate court should show strong restraint before interfering with an experienced family judge’s discretionary decision based on oral evidence, intervening only in the clearest case. Delay and a prolonged appeal are generally harmful where a child has been moved between countries. A parent’s lack of representation and reliance on Article 6 do not themselves justify permission where the welfare proceedings were fair in context, the child had separate representation, and no real prospect of changing the findings or outcome is shown.

On 10 August 2001, Bennett J, after a five-day welfare hearing in the Family Division, ordered J’s return to live with his grandparents in Lima, Peru, with regular contact with his mother and contact with his father. The father, acting in person, sought permission to appeal and a stay. He relied principally on lack of legal representation, emotional difficulty following his grandmother’s death, alleged factual errors, and Article 6 fair-trial rights. The matter concerned J’s long-term welfare under section 1 of the Children Act 1989, rather than summary return under international child-abduction procedures. The central issue was whether there was a real prospect of overturning the welfare decision and whether execution should be stayed to allow legal advice.

Lord Justice Robert Walker, sitting alone, refused permission to appeal and refused a stay of execution.

1. The proceedings concerned the long-term future of the child, not a request for summary return so that a Peruvian court could decide that future. Bennett J had therefore correctly applied the full ambit of section 1 of the Children Act 1989, treating the child’s welfare as paramount and working through the statutory checklist in section 1(3).
2. The reliance on Article 6 did not establish an arguable appeal. The hearing was concerned primarily with the child’s welfare, not the determination of the father’s civil rights and obligations. The child was represented by a guardian ad litem, the Official Solicitor, and experienced counsel. The father was intelligent, educated, articulate and had had more than two months to obtain representation or prepare his case.
3. There is a strong appellate policy against interfering with a welfare decision made by an experienced family judge who has seen and heard the witnesses and exercised a discretion on the facts. Intervention is justified only in the clearest case. The judge’s findings were substantially based on his assessment of oral evidence and the surrounding circumstances. Legal representation was unlikely to have altered them.
4. Delay is particularly damaging in child cases. Deferring the final hearing and pursuing a prolonged appeal is generally detrimental where a child has been uprooted from one country and begun to establish roots in another. The recent change in Peru’s status under the Hague Convention might affect future contact arrangements, but was not decisive of the main welfare decision.
5. The father had advanced the points likely to support permission. A stay to enable him to obtain further legal advice was therefore refused, as was permission to appeal. Any necessary adjustment to contact arrangements could be addressed by a later application to the Family Division.

1. Court of Appeal (Civil Division): On 16 August 2001, Lord Justice Robert Walker refused permission to appeal from Bennett J’s order and refused a stay of execution: [2001] EWCA Civ 1357.
2. Family Division: Bennett J made an order on 10 August 2001, following a five-day hearing, for the child’s return to live with his grandparents in Lima, Peru, with contact arrangements for the mother and father.
3. Family Division: Hogg J had previously directed that the child should not be summarily returned and that his welfare should be fully investigated in England.