S (A Child)

On an application for permission to appeal a discretionary child-residence decision, the appellate court must ask whether the judge directed himself correctly by reference to the statute and binding authorities, and whether the decision fell outside the wide ambit of the discretion. The appellate court must not substitute its own assessment of the evidence or the parties for that of the trial judge.

A shared residence order is not excluded merely because such orders are uncommon or because sole residence with contact is generally regarded as preferable. Generalisations about child welfare require caution, and the decision must remain case-specific. A court may clarify and implement an existing order without reopening the underlying welfare decision.

The father sought permission to appeal from an order made by His Honour Judge Tyzack QC in the Plymouth County Court on 25 March 2002. The order granted sole residence of the child to the mother and provided for contact with the father, including staged expansion of overnight and holiday contact.

The father argued that the judge had approached shared residence with a closed mind, had failed to apply the changed approach identified in D v D [2001] 1 FLR, and had made inadequate provision for future holiday contact. The central issues were whether the judge had exercised his discretion according to the statutory welfare principle and whether the order or contact arrangements disclosed an appealable error.

1. Permission refused. The trial judge had directed himself correctly by reference to section 1(1) and the welfare checklist in section 1(3) of the Children Act, and had correctly referred to D v D [2001] 1 FLR.
2. The judge’s observations that shared residence orders were rare and that children commonly did best in one home with good contact to the other parent did not establish a closed mind. The first observation was statistically accurate. The second reflected a general professional view, but generalisations in child-welfare cases must be treated with caution and cannot replace individual assessment.
3. The judge had identified and explained three case-specific reasons for refusing shared residence: the child’s vulnerability and established care arrangements, the parents’ relationship dynamic, and the father’s attitude and emotional state. The Court of Appeal could not substitute its own impressions for the trial judge’s assessment of witnesses and could not interfere with a reasoned discretionary decision falling within the wide ambit of the discretion.
4. The decision in D v D [2001] 1 FLR bound the court. Any further general shift in the use of shared residence orders had to be achieved by the higher appellate courts, Parliament, or gradual development of the law.
5. The judge had intended the father’s contact, including school-holiday and half-term contact, to progress towards equal sharing within approximately 12 to 18 months. The schedule prepared after the hearing failed clearly to record that timescale. If agreement could not be reached, the father could apply to the trial judge to clarify and implement the existing order. That would not require a fresh application or a fresh exercise of the welfare discretion.

• Court of Appeal (Civil Division): Application for permission to appeal refused. The order of His Honour Judge Tyzack QC was left undisturbed, subject to observations concerning clarification and implementation of the contact schedule.
• Plymouth County Court: On 25 March 2002, an order was made granting sole residence to the mother with contact to the father.