R (children), Re

An appellate court should not interfere with a family judge’s broad discretion over residence and contact unless the applicant shows that the judge was plainly wrong, misdirected herself, or made an erroneous appreciation of fact. Findings about a litigant’s personality and approach, based on evidence heard at trial, are ordinarily matters for the trial judge and are not open to appellate re-evaluation. A different view on points of detail is insufficient. The appellate court must respect the distinct functions of the trial court and the appellate court.

The parents of two children had long operated arrangements under which the children lived with the mother and had contact with the father. The father later applied for a shared residence order, although he had previously accepted the mother as the primary carer. Mrs Justice Black, sitting in the Family Division, continued residence with the mother and defined generous contact for the father. The father, appearing in person, sought permission to appeal. The central issue was whether the judge’s factual findings and exercise of discretion disclosed an error warranting appellate intervention.

1. Disposition. The application for permission to appeal was dismissed.
2. The judge had undertaken an extensive review of the history, considered the report and oral evidence of the children and family reporter, and heard the parties. She reached clear findings about the father’s personality and approach, including the significance of his letter to the mother and his subsequent written and oral evidence.
3. Those findings were matters for the trial judge. They were not open to review in the Court of Appeal merely because the appellate court might have assessed particular matters differently.
4. The judge was exercising a broad discretion concerning residence and contact. The appellate court’s function was to respect the respective roles of the trial court and the Court of Appeal. Intervention required the applicant to demonstrate that the judge was plainly wrong, misdirected herself, or made an erroneous appreciation of fact. That threshold was not met.
5. The court endorsed the continuing importance of collaborative give-and-take between the parents. The order permitted them to depart from the defined contact arrangements by agreement, allowing arrangements to develop incrementally as circumstances changed. This was an exhortation connected with the existing order, rather than a basis for allowing the application.

The transcript was to be provided to the applicant at public expense.

1. Court of Appeal (Civil Division). On 4 February 2003, the application for permission to appeal was dismissed: [2003] EWCA Civ 201.
2. High Court of Justice, Family Division. Mrs Justice Black continued the residence order in favour of the mother and defined generous contact arrangements for the father, including substantial holiday contact.