M (A Child), Re

In child-welfare appeals, the Court of Appeal must respect the trial judge’s assessment of evidence, impressions and discretionary weighing of relevant factors. It may intervene only where the decision is plainly wrong or affected by an error of principle. Shared residence arrangements require a flexible, child-focused approach. A young child may properly spend more time in one home to develop stability and security, but the assessment depends on the evidence. Interim arrangements must remain genuinely provisional. Changed circumstances or delay may justify an application to vary them. Costs orders in child cases are unusual because parents ordinarily act in what they believe are the child’s best interests.

The father sought permission to appeal against an interim order made by HHJ Kushner in the Manchester County Court on 18 July 2002. Following the parents’ separation, the order provided for the child to live mainly with the mother while spending specified nights and periods with the father. It was expressed as a shared residence order and made provision for a Cafcass report and a later two-day hearing. The father argued that the judge had wrongly treated the mother as the primary carer, failed to preserve the previous sharing of care, and made an excessive costs order.

The central issues were whether the judge had erred in principle or acted plainly wrongly, and whether the interim arrangements should be disturbed pending fuller evidence.

1. Permission refused. The interim residence and costs decisions disclosed no real prospect of successful appellate intervention.
2. Child-welfare decisions combine findings of fact, impressions formed from hearing the witnesses and the exercise of discretion in weighing the factors relevant to the child’s best interests. The appellate court had not seen or heard the witnesses. It could intervene only if the judge was plainly wrong or had erred in principle.
3. Shared residence orders require a flexible approach. They may be appropriate where the child effectively has two homes. In the case of a very young child, the court may take the view that greater time in one parental home is needed for stability and security, although a different conclusion may be reached on the evidence.
4. The judge was entitled, on an interim basis, to give greater weight to the mother’s home and her longer history as the child’s primary carer. That interim assessment could not determine the final welfare decision. The final hearing had to be approached with a completely open mind. Delay, changed circumstances and the failure to implement an additional period with the father could provide grounds for seeking variation below, but did not establish an appeal.
5. Costs orders in child cases are unusual because parents ordinarily act in what they believe to be the child’s best interests. Unusual circumstances are required. The three-day interim hearing supplied such circumstances, but there was no indication that the father had conducted the litigation unreasonably. The order was at the limits of what was open to the judge.
6. The judge expressed the view that, if practicable, the case might be relisted before a different judge, while acknowledging that she had no power to direct this.

Order: Permission to appeal refused.

• Court of Appeal (Civil Division): Permission to appeal from the Manchester County Court was refused. The application challenged an interim order made by HHJ Kushner on 18 July 2002.