B (Children) , Re

An appellate court reviewing the exercise of a family judge’s discretion must not substitute its own view merely because it might have reached a different conclusion. Intervention is justified only where the decision was plainly wrong. In determining interim contact, the court must focus on the children’s welfare and the likely benefit to them, rather than the parent’s interests alone. Contact may properly be refused despite supervision and the absence of a real risk of physical harm where the children are very young and there is a significant risk of emotional upset.

The mother of twin boys sought permission to appeal against an order made by Singer J on 7 August 2009 concerning her contact with the children pending final care proceedings. The mother had been found to have unlawfully killed two other children, findings she denied. The twins had been born prematurely on the Isle of Man and were subsequently made subject to care proceedings in England.

The central issue was whether the judge had been plainly wrong in refusing, or restricting, interim contact before the final hearing. The Court of Appeal considered the proper approach to reviewing that discretionary decision.

1. Outcome. Permission to appeal was granted, but the consequent appeal was dismissed.
2. Appellate restraint. Lord Justice Wall applied the principle recognised in G v G (Minors: Custody Appeal) 1985 FLR 894. An appellate court reviewing a discretionary decision does not sit in the position of the first-instance judge. It has not heard the evidence and must not substitute its own view merely because it might have reached a different result. Wall LJ stated that, although he might himself have allowed interim contact, he could not say that Singer J’s decision was plainly wrong.
3. Welfare and purpose of contact. The court treated the mother’s submissions concerning supervision, the lack of a real risk of physical harm, and the possible importance of the children knowing that their mother wished to see them as reflecting an adult perspective. The twins were very young and unlikely to have any realistic recollection of their mother. The risk of emotional involvement or an emotional outburst in their presence could properly be given substantial weight.
4. The decisive assessment was that the proposed contact was principally for the mother’s benefit rather than that of the children. On that basis, and having reviewed the exercise of Singer J’s discretion, the Court of Appeal concluded that the threshold for appellate intervention was not met. Lord Justice Thorpe agreed with Wall LJ’s reasons.

• Court of Appeal (Civil Division): Permission to appeal granted; appeal against the order of Singer J dismissed.
• Principal Registry of the Family Division: Singer J made the order under appeal on 7 August 2009.