W (A Child), Re

In child residence proceedings, the Court of Appeal reviews how the first-instance judge exercised the welfare discretion. It does not retry the evidence or substitute its own view. Intervention requires a serious error of law, a serious error in the balancing exercise, or a decision unsupported by the material. A judge may consider a CAFCASS report despite concerns about its preparation or revision. The report is not binding, and its weight is for the judge. In deciding where a child should primarily live, the judge may give greater weight to caregiving capacity and parental co-operation than to uncertainty about accommodation. Maintaining substantial contact with the other parent does not itself establish a breach of Convention rights.

Mr W renewed his application for permission to appeal against HHJ Caddick’s order of 13 May 2005 in the Dartford County Court concerning the residence and care of his daughter. The order placed the child’s main residence with her mother and provided for substantial contact with her father.

Mr W challenged the judge’s assessment of the parents, the use of a CAFCASS report after managerial intervention, the refusal to adjourn for a fresh report, the mother’s proposed move, and alleged discrimination and Convention breaches. The central issue was whether the judge had exercised his welfare discretion in a manner that the Court of Appeal could properly review.

1. Permission refused. The Court of Appeal held that the renewed application disclosed no reasonable prospect of successfully challenging the order.
2. The appellate function in a child-welfare case is supervisory. The court did not hear the witnesses and could not substitute its own view merely because it might have reached a different conclusion. The first-instance judge had a wide discretion, and intervention required a serious error of law, a serious error in the balancing exercise, or a decision that could not be supported by the material.
3. Welfare remained the paramount consideration under the Children Act. The judge was entitled to assess which parent was better able to meet the child’s needs and whether the parents could co-operate sufficiently for shared care. His assessment of the parties, particularly the father’s rigidity and the risk that shared residence would intensify conflict, was supported by the evidence.
4. The judge was entitled to consider the CAFCASS report. Concerns about the circumstances in which it was prepared and later revised did not require it to be ignored. Its weight was entirely for the judge, and it was not binding. The judge had properly reached his own conclusion from the whole evidence.
5. The judge was also entitled to refuse a further report. He had sufficient material, and a further report would have caused delay and additional stress. The child’s security in the mother’s care could properly be treated as more important than uncertainty about the proposed accommodation.
6. The order struck a lawful balance between the Article 8 family-life rights of the child and both parents. The court found no Convention breach. The reference to Article 2 was disproportionate in the circumstances. Orders concerning children remained capable of later review if arrangements failed or circumstances materially changed.

1. Court of Appeal (Civil Division): On 13 October 2005, Wall LJ delivered judgment and Moore-Bick LJ agreed. The renewed application for permission to appeal was refused.
2. Dartford County Court: HHJ Caddick made an order on 13 May 2005 placing the child’s main residence with her mother and providing for extensive contact with her father.