CP v AR & Anor

In private-law child residence proceedings, the Court of Appeal may intervene where a discretionary decision is plainly wrong because the balancing exercise contains a material error of method. The court must confront the special importance of natural parents, continuity of care and established sibling relationships when considering removal to a third party. An expert recommendation for independent care cannot be accepted while selecting non-independent relatives without a reasoned explanation and properly prepared evidence. A court may make a residence order for a third party on its own initiative, but the statutory scheme does not ordinarily permit removal from parental care without the necessary third-party or local-authority route. A report under section 37 is pointless where the local authority will not commence care proceedings and cannot be compelled to do so.

The mother appealed against a Luton County Court order placing her nine-year-old son with his paternal grandparents. The parents had made competing applications for residence following prolonged and damaging conflict. The child’s guardian supported placement with the grandparents, although they had not applied for residence or joined the proceedings. A child psychiatrist had advised consideration of independent foster care, subject to the statutory and practical availability of that option.

The mother argued that the judge had failed to weigh continuity of care, natural parenthood, the child’s relationship with his half-brother, the effect of reduced contact and the inadequacy of the assessment of the proposed carers. The central issue was whether the residence order was plainly wrong or resulted from an erroneous balancing exercise.

The appeal was allowed. The residence order in favour of the paternal grandparents and related orders were set aside. Wall LJ gave the leading judgment and Wilson LJ agreed.

1. The appellate court should not interfere merely because it might have reached a different result. It may intervene where the result is plainly wrong, or where the balancing exercise contains such a blatant error of method that the result could only have been reached through that error. In such a case the appellate court must substitute its own decision. The principles in G v G [1985] 1 WLR 647, Clarke-Hunt v Newcombe (1982) 4 FLR 482 and Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 were applied.
2. The judge had failed to grapple with the fundamental importance of upbringing by natural parents, continuity of care and the child’s family life with his half-brother. He also failed to address the radical reduction in the child’s time with his mother, step-father and half-brother. Those omissions vitiated the balancing exercise.
3. The judge accepted the psychiatrist’s recommendation that independent care should be considered, while selecting paternal grandparents who were not independent. He did not explain how that inconsistency was resolved. The guardian’s assessment was based on limited investigation and did not adequately address the proposed carers’ long-term capacity, the paternal aunt or the effect of removal.
4. The court could not compel the local authority to take care proceedings. Since the authority had made clear that it would not intervene, a report under section 37 of the Children Act 1989 would cause delay without enabling an interim care order or independent foster placement. The application for such a report was therefore rightly refused.
5. Although section 10(1)(b) of the Children Act 1989 permits a judge to make a residence order for a third party on the court’s own initiative, the general statutory scheme does not ordinarily permit removal from parental care to third parties without the appropriate third-party or local-authority route.

An interim residence order was made in favour of the mother, with contact to the father under the existing arrangements. The case was listed for a further hearing and expert assessment. The Family Assistance Order was discharged. Wall LJ also made obiter observations that shared residence is a legal, not psychiatric, concept and that continuing parental hostility can cause serious emotional harm.

• Court of Appeal (Civil Division): Permission to appeal was granted and the appeal was allowed. The residence order in favour of the paternal grandparents was set aside and replaced by an interim residence order in favour of the mother, with further directions. [2009] EWCA Civ 358
• Luton County Court: His Honour Judge Everall QC made a residence order in favour of the paternal grandparents on 12 March 2009, together with ancillary orders, and refused permission to appeal.