M (Children), Re

On an appeal from a discretionary welfare decision under Children Act 1989, the Court of Appeal must review the exercise of discretion rather than substitute its own view. Permission to appeal may be granted where a different outcome is arguable, but intervention is justified only where the decision falls outside the proper range, including where it is plainly wrong. The welfare balancing exercise requires the court to weigh identified risks against the children’s existing welfare, relationships, stability and the disruption of changing arrangements. Speculative or weak safeguards should not receive undue weight. Nevertheless, a decision supported by a rational welfare assessment and properly open to the first-instance judge will stand, even on a fine balance.

The mother applied to vary a shared-residence order concerning two children so that they would live primarily with her instead of their father. The arrangement had operated with the children living mainly with the father during term-time and spending substantial time with the mother.

The application followed allegations and criminal proceedings concerning the father’s sexual interest in teenage girls. He had been acquitted of the later criminal allegations, but the county court judge independently found that he had an unhealthy interest in girls aged 13 to 16. The judge accepted that this created a risk, but concluded that the children were settled, happy and not themselves at particular risk, and that moving them would be disruptive. He dismissed the mother’s application. The central issue was whether the judge’s welfare balancing exercise was flawed so that the Court of Appeal could intervene.

1. Appeal dismissed. Permission to appeal was granted, but the order dismissing the mother’s application was upheld.
2. The Court of Appeal’s function was supervisory. It was not enough that the appellate judges might have reached a different conclusion. Intervention was permissible only if the first-instance judge’s conclusion was plainly wrong or outside the proper exercise of discretion. A finer balance made appellate interference more difficult, not easier (per Lord Justice Wall, with Lord Justice Ward agreeing: paras [4], [24], [27]-[28]).
3. Under section 1 of the Children Act 1989, the judge had to undertake a welfare balancing exercise. The relevant considerations included the risk arising from the father’s demonstrated sexual predilections, his ability as a father and close relationship with the children, their settled circumstances and the disruption involved in moving them to the mother. The judge was also entitled to consider the evidence of the CAFCASS officer and Dr D, including the evidence that the father posed a risk, while deciding whether the risk justified changing the children’s residence (paras [20]-[24], [26]-[27]).
4. Two matters relied on by the county court judge as safeguards were given excessive weight. The presence of the father’s new 20-year-old partner was speculative and offered little reassurance in the circumstances. The fact that the father had previously experienced serious allegations as a warning or “fright” carried no weight, since an earlier fright had not prevented similar conduct recurring. Those criticisms did not invalidate the essential balancing exercise (paras [17]-[21], [27]).
5. The Court of Appeal agreed that the mother had acted properly in bringing the application and that any further allegation of similar conduct would be likely to lead to reversal of the arrangements. On the facts found, however, the judge was entitled to conclude that the children themselves faced no particular present risk and that a move would be disruptive. His decision therefore could not be characterised as plainly wrong (paras [25]-[28]).

• Court of Appeal (Civil Division) — Permission to appeal granted; appeal dismissed. The court upheld the order of HHJ Shawcross dismissing the mother’s application to vary the residence arrangements (paras [1]-[4], [27]-[28]).
• Portsmouth County Court — On 30 October 2007, HHJ Shawcross dismissed the mother’s application to replace the shared-residence arrangements with an order for sole residence in her favour. No order was made as to costs (para [2]).