E (Children), Re

A trial judge deciding a child-residence dispute is entitled to reach his own conclusions on the evidence, including conclusions differing from those of a court welfare officer. Where the officer has made no firm recommendation, the judge need only give satisfactory reasons for taking a different view. The judge is not generally required to recall the officer to address further evidence where neither party seeks an adjournment and the judge can evaluate the evidence himself. An appeal against the exercise of a welfare discretion will succeed only where the judge was plainly wrong or exceeded the generous ambit within which reasonable decision-makers may differ.

The mother appealed against a residence order made by Brentford County Court directing that the two children live with their father. Both parents were capable of providing suitable homes, but the judge assessed concerns about the mother’s supervision of the children, her relationships and incidents of violence in her home, together with the father’s over-protectiveness and negative attitude towards her.

The appeal challenged the judge’s treatment of the court welfare officer’s evidence and his decision not to recall her when further incidents arose after the hearing had begun. The central issues were whether the judge had adequately explained his departure from the officer’s views, whether procedural fairness required her recall, and whether the residence decision was plainly wrong.

1. Appeal dismissed. The residence orders in favour of the father stood. There was no order for costs, subject to legal aid assessment.
2. A court welfare officer assists the court as its eyes and ears, but the ultimate responsibility for finding facts and deciding welfare issues rests with the judge. Where the officer has made no firm recommendation, the judge is not required to justify departure from a recommendation that does not exist. The judge gave adequate reasons for disagreeing with aspects of the officer’s assessment, including his finding that the father’s concerns were genuinely held and not malicious.
3. The judge was entitled to continue the hearing without recalling the welfare officer. The parties were anxious for the hearing to conclude, and there was no effective application for an adjournment. The judge could assess the significance of the later incidents himself in the context of all the evidence.
4. The Court of Appeal does not reweigh evidence or substitute its own assessment of the children’s welfare. Where facts support the decision, intervention is justified only if the trial judge abused the advantage of seeing and hearing the witnesses, exceeded the generous ambit within which reasonable views may differ, or was plainly wrong. Applying G v G [1985] 1 WLR 647, the judge’s conclusion that the children faced continuing risks in the mother’s home, but not comparable risks in the father’s home, was open to him.

1. Court of Appeal (Civil Division): Appeal dismissed. The court upheld the residence orders made below.
2. Brentford County Court: His Honour Judge Oppenheimer made residence orders providing that the children should live with their father.