R (A Child), Re

On an appeal against a child-residence discretion, the Court of Appeal’s role is extremely limited. It must identify an error of law or a plainly wrong exercise of discretion, such as a demonstrable error in the method of balancing relevant considerations or the inclusion of irrelevant matters. Mere disagreement with the result, even in a grave and finely balanced case, is insufficient. A careful welfare evaluation that recognises the child’s wishes, disruption, existing stability, and expert and guardian evidence will not be disturbed where material supports the conclusion. The approach in G v G, [1985] 1 WLR 645, was applied.

The mother of R, aged eleven, sought permission to appeal against an order made by HHJ Bond, sitting as a Section 9 judge in the Bournemouth District Registry. The order transferred R’s residence from his mother, with whom he had lived since birth, to his father and the father’s wife. The mother argued that the judge had given excessive weight to R’s relationship with his father and insufficient weight to R’s wishes, stability, schooling, disruption and likely distress. She also challenged the guardian’s assessment and the psychiatric evidence. The central issue was whether the judge had erred in law or had exercised his discretion in a plainly wrong manner.

Application for permission to appeal refused.

1. Orders transferring a child from one parent to another are very rare and usually made only as a last resort. Nevertheless, the decision remained an exercise of judicial discretion.
2. The appellate function was extremely limited. Applying the approach in G v G, [1985] 1 WLR 645, the court had to consider whether there was an error of law or whether the exercise of discretion was arguably plainly wrong because of an error in the method of decision. Mere disagreement with the result of the balancing exercise was insufficient. Intervention could also be justified by the inclusion of irrelevant matters or exclusion of relevant matters.
3. The judge had carefully considered the arguments for and against the move. He recognised R’s settled life with his mother, his strong wishes, the seriousness and disruption of the proposed move, and its likely short-term effect. He went through the welfare checklist and assessed the evidence of the parties, the guardian and the psychiatrist.
4. The judge was entitled to accept the guardian’s overall analysis and the psychiatrist’s firm and compelling evidence that R was suffering emotional harm from his inability to maintain a proper relationship with his father. He was also entitled to find that R would continue to suffer harm in his mother’s care because of her lack of change in attitude.
5. There was material on which the judge could properly reach his conclusion. He had not ignored relevant matters or placed disproportionate weight on any factor. The Court of Appeal could not say that he had reached the wrong answer in the sense required for appellate intervention. A further hearing would risk causing additional harm to R.

1. Court of Appeal (Civil Division): on 17 November 2009, refused the mother’s application for permission to appeal.
2. Bournemouth District Registry: HHJ Bond, sitting as a Section 9 judge, made an order on 6 November 2009 transferring R’s residence from his mother to his father and the father’s wife. Permission to appeal was refused below, subject to a stay.