W & Ors (Children), Re

An appellate court should not use an appeal to revise a child-arrangements order merely because circumstances have changed or the arrangements have proved unworkable. The question is whether the order was plainly wrong when made; later failure does not itself show that it was misconceived. Similar restraint applies to discretionary financial and costs orders where the judge considered the relevant welfare, earning-capacity and expenditure evidence. Intemperate judicial remarks may be unjudicial, but they do not establish bias or prejudgment without evidence that the judge lacked impartiality. A record made in a financial dispute resolution hearing may fall within the domain of a subsequent trial, with its weight depending on the circumstances.

The father sought permission to appeal orders made by His Honour Judge Yelton in Southend County Court concerning two children and ancillary financial relief. The judge made a joint residence order, allocated time between the parents, ordered periodical payments of £1,000 a month to the mother, and awarded her £4,000 towards costs.

The father challenged the arrangements, financial order and costs order. He alleged procedural irregularities, judicial bias and improper reliance on a district judge’s record that he had obstructed a financial dispute resolution hearing. After the order, arrangements for one child changed and the parents agreed a different approach. The central issue was whether those matters justified permission to appeal or appellate intervention.

Appeal dismissed. Lord Justice Thorpe refused permission to appeal, and Lord Justice Hooper agreed. The appellant was ordered to pay the respondent’s costs, to be assessed.

1. Child arrangements. The Court of Appeal’s task was to consider whether the judge’s order was plainly wrong when made. It was not appropriate for the appellate court to undertake a variation designed to reflect subsequent changes in circumstances. The fact that the proposed arrangements had not worked did not establish that the original order was fundamentally misconceived. The necessary variation should be achieved by agreement or, if required, in the lower court.
2. Financial relief. The periodical payments order was at or towards the top end of the sustainable range, but the judge had expressly considered the mother’s earning capacity, the welfare of the child, the father’s income and his basic outgoings. Those findings did not disclose an appealable error.
3. Judicial conduct. The judge’s description of the father as a stupid man was an unjudicial emotional reaction. In the overall context, it did not indicate bias or prejudgment. A further exchange after judgment had been handed down did not materially support the complaint.
4. FDR record. It was not improper, on the material available, for a district judge conducting a financial dispute resolution hearing to record alleged obstruction. Once recorded, the matter fell within the domain of the subsequent trial, and the weight to be given to it depended entirely on the facts and circumstances. The wider question was novel, but there was no evidence that the record had materially affected the trial judge’s decision.
5. Costs. The judge’s discretion was particularly wide. The award of 50 per cent of the mother’s costs was supported by the need for a trial, the father’s unsuccessful Calderbank offers and the mother’s matching counter-proposals.

• Court of Appeal (Civil Division): Permission to appeal refused and appeal dismissed. The appellant was ordered to pay the respondent’s costs, to be assessed.
• Southend County Court: His Honour Judge Yelton made the child-arrangements, periodical payments and costs orders challenged on appeal.