(A Child)

In a residence dispute, the child’s welfare remains paramount. Under the welfare checklist in section 1(3) of the Children Act 1989, wishes and feelings must be considered in light of age and understanding, but they are never legally paramount. They may nevertheless be decisive where rejection risks prolonged disobedience or emotional harm.

The court must balance those wishes against the proven ability of the existing carer, the proposed carer’s reliability, the risk that a move will damage the child’s relationship with the other parent, and disruption to education and medical care. An appellate court should not interfere with a conscientious welfare discretion merely because the case is finely balanced.

The mother sought permission to appeal against HHJ Karsten QC’s dismissal of her application for a residence order transferring her eight-year-old son, W, from the father’s care to hers. W had lived with the father since 2001. His contact with the mother had ceased for about 18 months, and she had later retained him after contact contrary to the existing arrangements.

W consistently expressed a wish to live with the mother. Evidence also disclosed serious difficulties in the father’s household, including conflict with Ms B. The judge nevertheless relied on the father’s successful care, doubts about the mother’s ability to prioritise W’s needs and preserve his relationship with the father, and the disruption a move would cause. The central issue was whether the judge’s evaluation was plainly wrong.

Lord Justice Wilson gave the leading judgment. Wall LJ agreed, and Keene LJ agreed for the reasons given in both judgments. The application for permission to appeal was dismissed.

1. Child’s wishes. The judge had properly treated W’s wishes as an important advantage in favour of a move. Under section 1(3) of the Children Act 1989, however, welfare is paramount and a child’s wishes are never legally paramount. They must be assessed in light of the child’s age and understanding. Supplementary reliance on other jurisprudential sources was unnecessary.
2. Assessment of motives. The judge was entitled to consider what might underlie W’s consistent wishes. His assessment was reasonable speculation because it was expressed cautiously and by reference to possibilities, including the fear of another disappearance by the mother and the greater leisure time available to W under the proposed arrangements.
3. Father’s household. The judge had addressed the difficulties arising from Ms B’s presence and had considered both the adult conflict and concerns about her treatment of W. His failure to return expressly to every aspect of that evidence in the final analysis did not undermine the reasoning. There was no clear evidence of significant harm, or its likelihood, requiring an immediate transfer.
4. Balancing exercise. The judge was entitled to give substantial weight to the father’s proven and successful care, the mother’s untested capacity, her continuing belief that the father was a child abuser, the risk that W’s relationship with him would be obstructed or destroyed, the mother’s earlier 18-month absence and later retention of W, and the disruption to school, friendships and medical care. These factors outweighed the arguments for transfer. Following the appellate-restraint principle identified in 2005 2 Family Reports 802, the Court of Appeal could not interfere where the welfare discretion had been conscientiously and appropriately exercised and the conclusion was plainly open to the judge. A finely balanced decision did not, by itself, make an appeal more arguable.

• Court of Appeal (Civil Division), [2006] EWCA Civ 1263 — dismissed the application for permission to appeal.
• Principal Registry of the Family Division (HHJ Karsten QC), 17 March 2006 — dismissed the mother’s application for a residence order transferring W’s residence from the father.