N (Children), Re

Permission to appeal an interim residence order may be refused where the appeal cannot be heard in time to produce an effective change and disruption would undermine the children’s stability before an imminent full hearing. Continuity in a familiar home and school may carry substantial weight, particularly where a child is emotionally disturbed and educational support arrangements are in progress. The court should avoid moving children between carers where there is a real risk that a further move will soon be required. At the substantive hearing, welfare evidence should address the parent’s current fitness to resume care, rather than being confined to contact arrangements.

Following the parents’ separation, the two boys had lived with their father and his partner for more than two years. The mother resumed care after learning that the father was in custody or facing serious criminal charges. On her application, the Staines County Court made an interim order returning the boys to the father’s partner, principally because of the previous breakdown in the mother’s care, her delay in acting, and the stability of the existing home and school arrangements.

The mother sought permission to appeal. The central issue was whether the judge had made a serious error in ordering that the boys remain with their established carer pending an early full hearing.

Application refused. Lord Justice Ward found no serious error in the judge’s approach and concluded that permission to appeal should not be granted.

1. The case was delicately balanced, but the interim nature of the order was important. The full welfare hearing was fixed for 2 January, while an appeal could not realistically be heard before 15 November, in the middle of the school term. The court therefore had no decent opportunity to make an effective change before the scheduled hearing.
2. Stability justified maintaining the existing arrangement. One of the boys was emotionally disturbed, required a pastoral support plan, and had arrangements being made for speech therapy. His removal from school during the previous summer had already caused significant upheaval. Moving him again, with the prospect of a further move in January, would be particularly harmful. That consideration alone justified the conclusion that the children should remain where they were temporarily.
3. The judge was entitled to take account of the previous breakdown in the mother’s care, her failure to act when she knew or suspected that the father was in trouble, and the children’s established home and school environment. The mother’s status as their parent was relevant, but it did not determine the interim issue.
4. Ward LJ directed attention to the forthcoming welfare assessment. The welfare officer’s report should principally address the mother’s present fitness to care for one or both boys, rather than merely contact. The court also expressed the hope that a place would remain available at the school chosen by the mother, so that any later transfer could be managed effectively.

The formal order was: Application refused.

1. Court of Appeal (Civil Division): Permission to appeal from the interim order was refused.
2. Staines County Court: His Honour Judge Bishop ordered on 17 October 2001 that the boys should reside temporarily with the father’s partner pending the full hearing.