H (A Child), Re

In child residence appeals, the Court of Appeal does not substitute its own assessment merely because another outcome might have been preferable. Intervention is justified only where the judge adopted the wrong approach, relied on irrelevant matters, omitted relevant matters, lacked essential information, or was plainly wrong. A party who agreed at first instance that no welfare report was required, and did not seek an adjournment or report when the issue was considered, cannot ordinarily seek that evidence for the first time on appeal. Findings based on evidence heard by the trial judge attract particular restraint. The absence of a welfare report or an adjournment will not itself establish an unfair trial or breach of Article 6 where the procedure was properly conducted.

The mother sought permission to appeal from an order made by His Honour Judge McKittrick at Peterborough County Court on 15 October 2001. The order provided that J, aged 12, should move from living with his mother and her family to living with his father and his family.

The parents had agreed at an early stage that no CAFCASS welfare report should be prepared. The trial judge proceeded on the evidence presented, applied the welfare checklist, and made a residence order in favour of the father. The mother challenged the absence of a report, the judge’s factual findings, and the fairness of the hearing. The central issue was whether the judge’s exercise of discretion disclosed any basis for appellate intervention.

1. Permission refused. The Court of Appeal held that the trial judge’s residence decision could not be faulted.
2. Applying the approach recalled from G v G, appellate intervention in a child case is limited. It is available where the judge adopted the wrong approach, took account of an irrelevant matter, failed to take account of a relevant matter, lacked necessary information, or was plainly wrong when the decision is viewed overall.
3. The absence of a CAFCASS report did not justify intervention. Both parents had initially agreed that J should not be interviewed or observed for that purpose because the process might place him under stress. The judge queried the absence of a report, but neither party sought to alter that position. The mother could not obtain a further hearing merely because, after losing, she considered that additional evidence might have assisted her.
4. The Court of Appeal would not reopen the judge’s factual findings based on the evidence of the parents. Such findings could be challenged only in rare circumstances, such as an obvious misunderstanding of the evidence, reliance on evidence that did not exist, or omission of evidence that was crucial. The judge was entitled to assess the competing evidence and find that J had a closer relationship with his sister than with his stepbrother.
5. The complaint of unfairness also failed. There had been no application for an adjournment and no late request for a CAFCASS report. The hearing therefore did not contravene Article 6 or the general requirement of a fair trial on a level playing field. The judge had carefully balanced the evidence available to him and exercised his discretion in favour of the father.

• Court of Appeal (Civil Division): Permission to appeal from the order of His Honour Judge McKittrick at Peterborough County Court on 15 October 2001 was refused.