W (A Child), Re

A trial judge deciding residence and contact has a broad discretion to determine whether further expert or welfare evidence is necessary. There is no general rule requiring the court to obtain the assistance of every available professional expert in a difficult family case.

A direction under section 37(1) of the Children Act 1989 is available where it appears that a care or supervision order may be appropriate. The provision does not require a court deciding which parent should have residence to order a report where neither order is contemplated.

An appellate court should not interfere with a trial judge’s welfare evaluation absent a demonstrated misdirection or a conclusion that is manifestly wrong.

The father applied for contact with, and later residence of, his daughter E. Following a prolonged county court hearing, the judge dismissed allegations that the father posed a risk, made contact orders and later ordered that E live with him, while providing for generous contact with the mother and her half-sisters.

The mother appealed after the judge refused applications for further welfare, psychological and psychiatric reports and declined to adjourn the residence decision. The central issues were whether the judge had acted prematurely, whether further expert evidence was required, whether section 37 of the Children Act 1989 required an investigation, and whether the residence decision was open to him on the evidence.

1. Appeal dismissed. The Court of Appeal held that the county court judge had carefully considered the evidence, the competing qualities of the parents, the consequences of transfer, the contact difficulties and the welfare of the child. His decision fell within the latitude of the trial judge’s discretion.
2. Section 37(1) of the Children Act 1989 creates a gateway to a direction for investigation where, in family proceedings concerning a child’s welfare, it appears that a care or supervision order may be appropriate. The judge was entitled to conclude that the provision was not engaged because the issue was which of two parents should exercise residence, and neither a care nor a supervision order was contemplated.
3. There is no general rule or practice requiring the court in every difficult case to obtain further reports from a court welfare officer, psychologist or psychiatrist. Whether such evidence would assist is a matter for the trial judge’s case-management discretion. The judge was entitled to refuse further involvement by the welfare officer where the application was made at the last moment and would create further delay while contact was being refused.
4. The judge was also entitled to refuse a psychiatric report on the mother. The existing evidence and his own observations gave him ample material to assess her, and the mother had not commissioned such a report when she had the opportunity to do so.
5. The competing residence options were both capable of producing serious risks. The appellate court’s function was not to substitute its own welfare judgment merely because another judge might have taken a different course. Interference required a demonstrated misdirection or a conclusion that was manifestly wrong.

Appeal dismissed with costs. Public funding assessment of the respondent’s costs.

• Court of Appeal (Civil Division): dismissed the mother’s appeal from the residence and contact orders made by His Honour Judge Brandt in the Colchester County Court.