F (Children)

In an interim dispute about where children should live, the court must approach disputed evidence with procedural fairness. It should avoid adverse findings about a parent’s motives, insight or emotional judgment without adequate investigation. The status quo must be assessed across the overall history of the children’s care. A short, recent period of delegated care does not automatically replace a longstanding primary-care arrangement. The court must weigh all material considerations, including evidence of the children’s adjustment to a new school and the availability of care, rather than allowing an erroneous status quo analysis to determine the result.

The mother was the children’s primary carer. Following a proposed move to Crewe, the children temporarily remained in the care of their father and grandfather before returning to the mother. The father and grandfather applied for orders placing the children in their joint care pending determination of a residence application. On 29 January 2002, His Honour Judge Catlin ordered that the children live with them until the final hearing, with staying contact to the mother.

The mother sought permission to appeal, with an appeal to follow if permission were granted. The Court of Appeal considered whether the judge had been entitled to make adverse findings on disputed matters without hearing oral evidence and whether he had correctly identified and applied the status quo principle.

1. Procedural fairness. Lord Justice Thorpe held that the interim hearing procedure could not properly support the judge’s adverse findings about the mother’s alleged deception, lack of insight and prioritisation of her own needs. The statements raised highly contentious issues, and the judge had declined invitations to hear oral evidence. His reasoning went beyond what was permissible on the material and procedure adopted.
2. Unsupported assumptions. The judge had assumed that the children would have been distressed on learning that they were not returning to High Wycombe. That emotional reaction required fuller investigation and could not simply be inferred. The judge had also recognised that the mother’s motives and circumstances remained to be explored.
3. Status quo. The judge had treated the arrangements beginning in December as the relevant status quo. Thorpe LJ held that this took an erroneous view of the overall perspective of the children’s lives. The mother had been the primary carer for the older child for nine years and was the only person with parental responsibility. The temporary reliance on the father and grandfather for care did not necessarily displace that longstanding arrangement.
4. Balancing the evidence. The judge had noticed evidence that the children had settled remarkably well at their new schools and that the mother was now available to care for them full-time, but had not properly brought those matters into the balance. An interim welfare decision must assess the competing risks and all material evidence, rather than allowing an incorrectly identified status quo to dictate the result.
5. Disposition. Thorpe LJ concluded that the order of 29 January 2002 should be set aside and that the children should remain with their mother pending the full hearing. Lord Justice Tuckey agreed. The formal order recorded at the conclusion of the transcript was: application refused.

• County Court — On 29 January 2002, His Honour Judge Catlin ordered that the children reside with their father and grandfather until the final order, with staying contact to their mother.
• Court of Appeal (Civil Division) — A stay prevented implementation of the order pending the application. Thorpe LJ concluded that the order should be set aside and that the children should remain with their mother pending the full hearing; Tuckey LJ agreed. The formal order recorded was application refused.