R (A Child)

In a family residence appeal, the appellate court will not interfere with a trial judge’s welfare assessment merely because a party disputes the weight given to the evidence. The trial judge is entitled to assess the credibility of parents, welfare evidence, the effect of separating siblings, proposed contact arrangements and the child’s wishes. An 11-year-old child’s emotional wish to move need not be supported by rational reasons where the evidence indicates a genuine emotional orientation. The timing of implementation is ordinarily for the trial judge. Fresh evidence will not justify permission or a stay where it does not materially affect the decision.

The Canterbury County Court, sitting on 30 January 2004, granted the father a residence order concerning E, aged 11, which involved E moving to Northern Ireland and separating from his 16-year-old brother, T. The mother sought permission to appeal and a stay shortly before the order was due to be implemented. She challenged the assessment of sibling separation, contact arrangements, E’s wishes, the timing of the move and the admission of fresh evidence. The central issue was whether any arguable error or new material justified appellate intervention.

Applications refused. Lord Justice Thorpe held that the mother’s proposed grounds did not disclose a persuasive basis for permission to appeal or a stay.

1. The transcript showed that the trial judge had considered the effect of separating the brothers and had adopted the welfare officer’s assessment that the relationship was often fraught. It was therefore untenable to suggest that the issue had been given insufficient importance.
2. The challenge to contact arrangements contradicted the trial judge’s findings. She had accepted the father’s evidence and assessed him as a man likely to honour his commitments. Compliance and credibility were essentially matters for the judge who had seen and heard the witnesses.
3. The absence of an articulated rational explanation for E’s wish to move did not invalidate that wish. Decisions about emotional orientation need not be based on intellectual reasoning. The welfare officer had spent considerable time assessing E and regarded him as intelligent and articulate.
4. The timing of implementation was primarily a matter for the trial judge. Choosing the forthcoming half-term rather than the end of term or school year disclosed no arguable error.
5. The proposed fresh evidence was introduced on an unprincipled basis. The school report did not affect the trial judge’s conclusion, and the letter from E illustrated the emotional pressure caused by prolonged parental conflict but did not justify reopening matters already decided. Granting permission or a stay would risk prolonging that turmoil.

There was no order for costs.

1. Court of Appeal (Civil Division) — On 19 February 2004, the applications for permission to appeal and a stay were refused: [2004] EWCA Civ 360.
2. Canterbury County Court — On 30 January 2004, Her Honour Judge Andrews made a residence order in favour of the father concerning E.