F (A Child)

In appeals from discretionary child-welfare decisions, the Court of Appeal must not reweigh the welfare factors or substitute its own view. Intervention is justified only for a relevant omission, an improper consideration, an error of principle, or a decision outside the generous ambit of reasonable disagreement. The status quo is not a separate presumption. Its significance is captured by section 1(3)(b) of the Children Act 1989, requiring consideration of the likely effect of a change in circumstances. A welfare judgment may be upheld although its reasons do not express every factor fully, provided they adequately explain the result and disclose no error of law.

Following the parents’ final separation, their two children lived with their mother in Droitwich for about a year. The father applied for residence. After a two-day hearing, His Honour Judge Rundell found that the father had previously been the children’s main carer, rejected the mother’s domestic-violence case, and accepted that both parents could care adequately for the children. A CAFCASS officer recommended shared residence, including a return to the father’s home and the children’s former school in Nottingham. On 8 January 2009, the judge made a shared-residence order. The mother appealed, relying on the status quo and contending that the reasons for changing the children’s arrangements were inadequate. The central issue was whether the judge had erred in law or exceeded the permissible scope of his discretion.

Ward LJ gave the leading judgment. Longmore LJ and Moore-Bick LJ agreed. The appeal was dismissed.

1. An appellate court reviewing a discretionary child-welfare decision must not substitute its own assessment of the weight to be given to competing factors. Applying G v G [1985] 1 WLR 647 and the similar guidance in Piglowska v Piglowski [1999] 1 WLR 1360, intervention is justified only where the trial judge failed to take account of a material fact, took account of an improper fact, erred in principle, or exceeded the generous ambit within which reasonable disagreement is possible.

2. The status quo does not create an independent presumption that settled children must remain where they are. Its significance is that the court must apply the welfare checklist, including the likely effect of a change in circumstances under section 1(3)(b) of the Children Act 1989.

3. The trial judge had considered the relevant welfare factors. The children’s wishes carried limited weight because of their ages. The move to Nottingham involved disruption, but also a return to a familiar area, home and school. Both parents were found capable of caring for the children, and the children were considered likely to thrive in either household. Although educational needs under section 1(3)(c) were not separately addressed in express terms, the reasons were adequate when read as a whole.

4. Ward LJ stated that he might have reached a different decision, but that was not the appellate question. The judge had given sufficient reasons for preferring the father’s proposal, had made no error of law, and had remained within the permissible ambit of disagreement. The shared-residence order therefore stood.

1. Court of Appeal (Civil Division) — On 3 March 2009, the appeal against the shared-residence order was dismissed: [2009] EWCA Civ 313.

2. Worcester County Court — On 8 January 2009, His Honour Judge Rundell ordered shared residence, with the children principally residing with their father in Nottingham and spending substantial time with their mother.