T (A Child), Re

In child-arrangements litigation, a residence decision may rely on findings about each parent’s capacity to promote the child’s relationship with the other parent, provided the welfare test is applied and the consequences of transfer are considered. Allegations of abuse that have not been proved cannot remain a welfare factor. A departure from a CAFCASS recommendation requires reasons, but further psychological assessment is not automatically necessary where sufficient expert material exists and delay may harm the child. Costs orders in children proceedings are exceptional, but may be justified by unreasonable conduct. An erroneous approach to the costs discretion may justify permission to appeal.

The mother sought permission to appeal decisions of Her Honour Judge Kushner in the Manchester County Court. The first, dated 17 February 2004, transferred the child’s residence from the mother to the father following findings about the mother’s conduct, anxiety and ability to support flexible contact. The second, dated 9 June 2004, ordered the mother to pay substantial costs incurred in the children proceedings. The central issues were whether the residence decision disclosed an arguable error and whether the costs order involved an incorrect exercise of discretion.

Mrs Justice Black refused permission to appeal the residence decision but granted permission on the costs issue alone.

1. Residence and permission threshold. The proposed criticisms of factual findings, including the mother’s account of a half-term holiday, did not undermine the judge’s reasoning. Judge Kushner had applied the welfare test, considered the serious consequences of moving the child from the mother and his half-brother, and made findings about the likely future conduct of the parties. The resulting decision was tenable and disclosed no real prospect of success on appeal.
2. Unproved allegations. Once allegations of sexual abuse had been found unproved, the parties and the court had to proceed on the basis that the abuse had not happened. The possibility of abuse could not be treated as relevant to the residence decision.
3. Professional recommendations and evidence. A judge who differs from a CAFCASS officer’s recommendation must give reasons. Judge Kushner had done so, taking account of the likely detriment of transfer and the supporting evidence of the child psychologist. A further psychological assessment of the mother and the child’s half-brother was not an essential part of the decision where the judge understood the complexity of the case and further delay would not serve the child’s interests.
4. Costs. Costs orders in children proceedings are exceptional, but may be made where a party has acted unreasonably in the litigation. The costs judgment acknowledged that the mother genuinely believed the allegations and was partly motivated by concern for the child’s welfare. There was therefore a reasonable prospect that the order involved an incorrect exercise of discretion, particularly because the judge appeared to rely, at least in part, on whether the order was “fair in all the circumstances” as the governing test.
5. Order. Permission to appeal was granted only on the costs issue. That issue was directed to be heard by two Lords Justices, with a time estimate of one hour. There was no order for costs.

1. Court of Appeal (Civil Division): On 5 November 2004, Mrs Justice Black refused permission to appeal the residence decision and granted permission limited to the costs order, reported at [2004] EWCA Civ 1667.
2. Manchester County Court: Her Honour Judge Kushner transferred residence to the father on 17 February 2004 and made the costs order on 9 June 2004.