Y (A Child)

On an appeal concerning a child’s return abroad, the appellate court will interfere with a discretionary welfare decision only where the judge acted on an incorrect principle. The child’s best interests are the paramount consideration. Allegations of mistreatment that were fully explored at first instance do not justify permission to appeal merely because they are repeated or presented more forcefully later. A new circumstance, such as recently obtained employment, will not establish a real prospect of success where its duration is uncertain and the original welfare assessment was supported by other evidence.

The applicant father sought permission to appeal against an order made in the High Court Family Division on 2 August 2005. The order permitted the mother to return with the parties’ five-and-a-half-month-old child to the United States and declined to make a residence order, leaving welfare decisions to the United States court.

The father relied on alleged neglect and mistreatment, financial circumstances, and newly obtained employment. Those matters had been raised before the first-instance judge, who had heard evidence from both parents. The issue was whether there was an arguable error of principle or a real prospect that a full appeal would succeed.

1. Application refused. The renewed application for permission to appeal was rejected.
2. Because the first-instance decision involved the exercise of discretion, an appeal required the applicant to show that the judge’s exercise of discretion was wrong in principle. No such ground was identified.
3. The child’s best interests were the governing principle and the paramount concern. If the judge had been satisfied that returning the child to the United States was contrary to those interests because of mistreatment, the judge would have been bound to refuse permission for the return.
4. The allegations of neglect had been before the first-instance judge. Both parents had given evidence and had been cross-examined, giving the judge the opportunity to make findings. The Court of Appeal inferred that the judge was not satisfied that the allegations justified refusing the return.
5. The father’s newly obtained security work, due to begin shortly after the hearing, did not create a real prospect of success. Its indefinite continuation was uncertain, and the case also involved wider difficulties in the parties’ relationship and circumstances.
6. The first-instance judge had applied the correct principle and there was no prospect of success on a full appeal.

• Court of Appeal (Civil Division): Lord Justice Neuberger refused permission on paper. Lady Justice Arden heard the renewed application urgently and refused permission.
• High Court of Justice, Family Division: Baron J’s order of 2 August 2005 permitted the mother to return with the child to the United States and declined to make a residence order.