A-N (A Child)

An appellate court should not interfere with a first-instance welfare decision unless the judge made an error of law or exercised the discretion in a way that was plainly wrong. Where the judge has conscientiously evaluated the evidence, made findings open to him or her, and applied the welfare principle and checklist, the decision is ordinarily final. The same restraint applies to decisions about contact and to orders under section 91(14) of the Children Act. A child’s wishes and feelings must be considered in their context, including any pressure created by a parent’s denigration of the other parent.

The applicant sought permission to appeal from an order made by His Honour Judge Bush at Leeds County Court on 5 December 2001. The order continued the child’s residence with her mother, increased contact with her father, refused overnight contact, and restricted further section 8 applications under section 91(14) of the Children Act for two years.

The proposed appeal challenged the judge’s assessment of the child’s wishes and feelings, the evidence of the CAFCASS officer, the residence and contact decisions, and the section 91(14) restriction. The central issue was whether the first-instance judge had made an error of law or exercised his discretion in a plainly wrong manner.

1. Permission refused. The decision below was a proper exercise of judicial discretion and there was no realistic prospect of a successful appeal.
2. An appellate court may interfere with a first-instance welfare decision only where the judge made an error of law or exercised the discretion in a way that was plainly wrong. The judge must have acted conscientiously, had material evidence on which to act, and made findings of fact that were open on the evidence.
3. The judge was entitled to accept the CAFCASS officer’s evidence and to find that the child loved both parents, wished to remain living with her mother, wanted contact with her father, and was under substantial pressure from him. The finding that denigration of the mother risked emotional harm was supported by the evidence.
4. The judge had properly directed himself under section 1 and the welfare checklist in the Children Act. His refusal to transfer residence, and his extension of contact without overnight contact, were decisions within his discretion and could not properly be revisited on appeal.
5. The order under section 91(14) was also upheld. The judge had carefully directed himself in accordance with Re P, and his exercise of discretion was described as impeccable.
6. No order for costs was made.

• Court of Appeal (Civil Division): Permission to appeal from the order of His Honour Judge Bush at Leeds County Court dated 5 December 2001 was refused.