M (A Child), Re

In a contested child-residence dispute, where both parents can provide adequate physical care, the decision turns on the trial judge’s assessment of the parties, their proposals and the child’s welfare, with particular regard to the welfare checklist. The Court of Appeal should respect the trial judge’s responsibility to determine which evidence to accept, the weight and relevance of matters, and the comparative parental responsibility and capacity of the parties. A challenge alleging that factual findings are contradicted by the evidence rarely provides a basis for permission to appeal. Permission should not be granted where the appellate court sees no realistic prospect of reaching a different assessment.

This was a renewed application for permission to appeal against a decision made on 9 November 2000 by His Honour Judge Wilson, sitting in the Family Division at Northampton. The judge had determined competing residence applications by the parents of a child aged nearly two years. Both parents were able to offer adequate physical care. The judge preferred residence with the mother, having assessed the parties’ conduct, parental capacity, proposed care arrangements and the importance of contact with the maternal grandparents. The father argued that the factual findings were contradicted by the evidence. The central issue was whether that challenge disclosed any realistic basis for appellate intervention.

The renewed application for permission was refused. The provisional refusal made on 25 January 2001 was confirmed. The order was application refused, with legal aid assessment.

1. Where each parent can provide adequate physical care, the trial judge must determine a contested residence application by assessing the parties and their rival proposals in the light of the child’s welfare and with particular regard to the welfare checklist.
2. The trial judge is responsible for deciding which evidence to accept or reject, what matters are important or irrelevant, and which parent offers the greater degree of parental responsibility and capacity. The Court of Appeal must respect that evaluative responsibility.
3. A submission that the trial judge’s factual findings were contradicted by the evidence rarely justifies permission to appeal. Here, the judge had made clear findings about the father’s selfish conduct, lack of proper concern for the child’s welfare, and approach to the child as an object or commodity. He had also considered the importance of contact with the maternal grandparents and concluded that contact was more likely to be maintained if residence were with the mother.
4. After reviewing the papers, Lord Justice Thorpe saw no realistic prospect that the Court of Appeal would reach a different assessment if permission were granted. The application therefore disclosed no sufficient ground for appellate intervention.

1. Court of Appeal (Civil Division): On 7 March 2001, Lord Justice Thorpe refused the renewed application for permission and confirmed the provisional refusal of 25 January 2001. [2001] EWCA Civ 464
2. High Court of Justice, Family Division: On 9 November 2000, His Honour Judge Wilson determined the parents’ competing residence applications and preferred residence with the mother.