N (Children)

In determining child residence arrangements, the court may prefer a regime that keeps siblings together and gives each parent equal periods, where that arrangement is supported by the welfare assessment. On appeal, the court must not substitute its own view in a finely balanced welfare decision. Intervention is justified only where the decision was plainly wrong or fell outside the generous ambit of reasonable decision-making. Errors in recalling evidence do not necessarily justify reversal if the ultimate conclusion remained open to the judge. Proceeding in a parent’s absence is not necessarily unfair where no adjournment was sought.

The mother sought permission to appeal an order made by Leicester County Court on 16 April 2007. The order provided that the younger two children should reside with each parent for equal periods, effectively week about and for half the school holidays. The mother challenged the decision to proceed in her absence, the treatment of domestic-violence allegations, the judge’s recollection of evidence, and the choice of shared residence over an alternative contact arrangement. The central issue was whether the judge’s welfare conclusion was plainly wrong.

Disposition

1. Lord Justice Ward granted permission to appeal but dismissed the appeal. Lord Justice Wall agreed.
2. The mother’s absence did not make the hearing unfair. She had not applied for an adjournment, and her solicitors had attended but had not sought one. Although the court was sympathetic to her circumstances, the judge was not so egregiously lacking in fairness that the order could be overturned.
3. The judge was entitled, on the evidence, to treat the principal domestic-violence allegation as an isolated incident rather than part of a pattern, and to conclude that it did not deeply affect the children.
4. The judge had incorrectly recalled aspects of the Cafcass officer’s evidence. He had not attended the later hearing, and there was no independent report that the existing arrangements were working well. Those errors were regrettable, but the decisive question was whether the welfare conclusion itself was sustainable.
5. The choice between a shorter, more frequent contact arrangement and week-about residence was finely balanced. The judge was entitled to conclude that the latter would keep the children together and allow equal time with each parent. That conclusion fell within the generous ambit of reasonable decision-making and was not plainly wrong.

• Court of Appeal (Civil Division): Permission to appeal granted, but the appeal dismissed.
• Leicester County Court: On 16 April 2007, HHJ O’Rorke ordered that the younger two children reside with each parent for equal periods.