J (A Child)

In a child residence dispute, an appellate court should not substitute its own welfare assessment for that of the first-instance judge. The question is whether the judge made an error of law or reached a decision outside the proper scope of the discretion. A Children Act 1989 section 7 report is advisory: the judge decides the case but must consider the child's wishes and feelings. A flawed report does not automatically require a rehearing where the judge examines the defect and assesses its likely effect. A section 91(14) restriction is also discretionary and may be upheld where the relevant guidance and the child's circumstances have been considered.

The father applied for his seven-year-old son, C, to live with him. The Norwich County Court refused the application, continued C's residence with his mother and existing substantial contact, and made a three-year order under section 91(14) of the Children Act 1989.

The father sought permission to appeal. He argued that the proceedings were unfair because the local authority's section 7 report had not properly ascertained C's wishes and feelings. He also relied on alleged instability and harm in the mother's household. The central issues were whether the judge could determine the welfare question despite the defective report and whether the discretionary orders were open to him.

1. Application refused. The first-instance judge was entitled to continue C's residence with his mother, maintain the existing contact arrangements and impose the three-year section 91(14) restriction.
2. Appellate review. The judge was exercising a broad welfare discretion. The appellate question was whether he had made an error of law or whether the decision was one he was not entitled to make. The Court of Appeal could not interfere merely because it might have reached a different conclusion.
3. Section 7 report. A section 7 reporter or court adviser does not decide the case. The judge remains responsible for applying the welfare criteria under section 1 of the Children Act 1989 and must consider the child's wishes and feelings. The report was flawed because C's wishes were not fully explored, but the judge examined that defect, considered whether fuller evidence would have altered the result, and assessed C's age, circumstances, schooling and stability. He was entitled to conclude that the defect was not conclusive against residence with the mother.
4. Wishes and feelings. The wishes of a six-year-old child, even if fully ascertained, were not determinative. Their weight depended on the child's age and personal circumstances. The judge was entitled to regard C's settled and successful schooling and the disruption of a move as important welfare considerations.
5. Section 91(14). The judge had directed himself appropriately by reference to Re P (section 91(14) Guidelines) (Residence and Religious Heritage) [1999] 2 FLR 573, considered the relevant circumstances and exercised his discretion. If a crisis arose or the judge proved wrong on an aspect of the decision, an application could be made to lift the restriction. The Court also observed that CAFCASS, rather than the local authority, should preferably be engaged for any future investigation of C's wishes.

• Court of Appeal (Civil Division) — Permission to appeal refused. The court held that the Norwich County Court judge had acted within his welfare discretion.
• Norwich County Court — On 8 February 2008, HHJ Richards refused the father's application for C to live with him, maintained residence with the mother and substantial contact, and made a three-year order under section 91(14) of the Children Act 1989.