S (A Child), Re

An appellate court considering permission to appeal in a child-welfare case does not rehear the evidence or substitute its own view of the witnesses. It asks whether, on the trial judge’s findings and the law applied, there is a real prospect of establishing that the decision was plainly wrong. A judge’s evaluation of a parent’s capacity to meet a child’s needs, informed by welfare and expert evidence, is therefore entitled to substantial appellate restraint. Past parental disputes and allegations have limited relevance unless they bear on welfare. A parent’s continuing preoccupation with relitigating those disputes may itself be relevant to whether the child’s interests are being prioritised. An existing family assistance order may provide a route back to the trial court if constructive indirect contact is obstructed.

The father sought permission to appeal against orders made by the Great Grimsby County Court, sitting in Hull, that his daughter should live with her mother, that there should be no order for contact, and that the mother’s application under section 91(14) of the Children Act 1989 should be adjourned. A family assistance order had also been made to facilitate indirect contact.

The trial judge assessed the evidence of the parents, a psychologist and social workers. He found that the father was preoccupied with the parental dispute and unable to prioritise the child’s welfare, while the mother was capable of meeting her needs. The central issue was whether the proposed appeal had a real prospect of showing that the trial judge had been plainly wrong.

1. Disposition. Lady Justice Hale, giving the only judgment, refused the father’s application for permission to appeal. The proposed appeal had no real prospect of success.
2. Appellate restraint. The Court of Appeal does not rehear a welfare case, hear the witnesses again or reconsider the evidence afresh. It examines the trial judge’s findings of fact and the law applied, and asks whether there is a reason to think that the judge was plainly wrong.
3. Application to the welfare assessment. The trial judge had heard the parents, the psychologist and the social workers. He was entitled to regard the father’s continuing wish to relitigate the separation, injunction and related allegations as relevant to his apparent preoccupation with the dispute rather than the child’s needs. The Court of Appeal saw no proper basis to interfere with that evaluation. Complaints about police conduct, social-services investigations and the firearms incident did not demonstrate any material error in the welfare decision.
4. The judge had considered the welfare checklist in section 1(3) of the Children Act 1989 and had made findings about each parent’s ability to meet the child’s needs. Those findings, supported by the welfare and expert evidence, provided a proper basis for the orders concerning residence and contact.
5. Indirect contact. The family assistance order was intended to help the father communicate with the child constructively. If the mother refused communications prepared with social-services assistance and considered appropriate by them, the father could return to the county court to seek an indirect contact order. That issue was not for the Court of Appeal on this application.

• Court of Appeal (Civil Division) — On 5 November 2002, Lady Justice Hale refused the father’s application for permission to appeal: [2002] EWCA Civ 1695.
• Great Grimsby County Court, sitting in Hull — His Honour Judge Hull ordered that the child live with her mother, made no order for contact, and adjourned the mother’s application under section 91(14) of the Children Act 1989. A family assistance order was also made.