C (Children)

An appellate court reviewing an interim discretionary order should not make findings of fact or resolve competing accounts where the case requires assessment by the judge at first instance. It should interfere only where the order cannot properly stand on the available legal or evidential material. A later change of circumstances or failure to comply with the order may require urgent reconsideration at first instance, but does not itself justify allowing the appeal. The appropriate course may be to dismiss the appeal while directing an urgent, on-notice hearing.

The father appealed an order made by the Croydon County Court on 19 October 2007 concerning the parties’ occupation of their jointly owned home and arrangements for their three children. The order established an interim arrangement between the parents, with a final hearing listed for January 2008. The parties gave sharply conflicting accounts, the order was not being observed, and circumstances affecting the children had changed. Permission to appeal was granted, but the Court of Appeal had no transcript of the judge’s reasons and both parties appeared in person. The central issue was whether the reviewing court could properly interfere with the judge’s discretionary order, and what should happen pending urgent reconsideration.

1. Appeal dismissed. The order made by the county court judge was a reasonably made exercise of discretion and could not properly be set aside by the Court of Appeal on the material available.
2. The Court of Appeal was a reviewing court. It was neither able nor permitted, in the circumstances, to resolve the parties’ conflicting factual allegations or make findings of fact. Those matters were for the judge hearing the case at first instance.
3. The judge’s note indicated that the relevant factors had been considered when the order was made under Part 4 of the 1996 Act. The subsequent failure to obey the order was not a fault in the judge’s original decision and did not establish a proper basis for appellate interference.
4. Changed circumstances and the children’s deteriorating situation nevertheless required rapid first-instance review. The matter was directed to be re-listed urgently before a judge or deputy judge of the Croydon County Court, on notice to both parties, to reconsider the arrangements and make further orders governing the children’s care, occupation of the home, and the forthcoming Christmas and New Year period.

• Croydon County Court: On 19 October 2007, His Honour Judge Atkins made an interim order regulating occupation of the jointly owned family home and arrangements for the children, with a final hearing listed for January 2008.
• Court of Appeal (Civil Division): Permission to appeal was granted by Ward LJ on 28 November 2007. The appeal was dismissed, with an urgent on-notice reconsideration directed in the Croydon County Court.