R (A Child), Re

In a finely balanced child residence dispute, a judge may not merely acknowledge a mature child’s wishes, relevant emotional needs or a CAFCASS recommendation and then discount them without proper evaluation. The child’s wishes are not determinative, but must be assessed in light of age and understanding. There is no hard-and-fast rule that a welfare officer must always attend. However, a judge minded to reject a clear recommendation should ordinarily test the misgivings with the officer, while weighing delay and the likely assistance. A settled home or school placement cannot, by itself, displace other relevant welfare factors.

The child had lived with his mother from an early age. In March 2008, when the mother was unable to cope, he went to live with his father and stepmother. The father subsequently applied for a residence order. A CAFCASS officer investigated the family and recommended, on balance, that the child return to live with his mother.

At Worcester County Court, HHJ Hooper QC ordered that the child remain living with his father. The judge heard neither the child nor the CAFCASS officer. The mother appealed, alleging unfair judicial questioning, inadequate treatment of the child’s wishes and feelings, and error in rejecting the CAFCASS recommendation without hearing the officer. The central issues were whether the judge had properly evaluated the welfare checklist factors and whether the case should have been adjourned.

By a majority, Lord Justice Rix and Lord Justice Moore-Bick allowed the appeal. Lord Justice Ward dissented. The first ground failed unanimously: the judge’s questions to the mother were courteous, neutral and consistent with the non-adversarial nature of family proceedings. They did not create an appearance of bias or make the hearing unfair.

1. Appellate restraint. The Court accepted that an appellate court must not substitute its own discretion merely because it might have reached a different conclusion. Intervention was nevertheless justified where the judge had erred in principle by failing properly to evaluate relevant matters.
2. Wishes and welfare factors. The majority held that the judge had acknowledged, but had not genuinely evaluated, the child’s wishes and feelings. The child was thoughtful, sensitive and approaching the age at which his wishes might carry considerable weight. His preference for his mother was supported by rational and emotionally intelligible reasons. The judge was right that the wishes were not determinative, but wrong to discount them substantially because they reflected natural affection. The child’s emotional need to be with his mother around the birth of the new baby, as identified by the CAFCASS officer, also required proper evaluation.
3. CAFCASS evidence. There was no absolute rule requiring the officer’s attendance. The court had to balance the likely further assistance, the safety and propriety of departing from the recommendation, and the prejudice caused by delay. However, where the recommendation was clear and central to the assessment of the child, the judge should ordinarily test his misgivings with the officer before deciding. In this finely balanced case, rejecting the recommendation without hearing the officer, and without adequately explaining the departure, was an error of principle. The judge’s reliance on the child’s settled home and school could not justify brushing aside the other factors.
4. Order. The matter was remitted for a fresh hearing before a different judge, with a fresh CAFCASS report from another officer. The rehearing was to be expedited.

Ward LJ would have dismissed the appeal, considering that the judge had properly weighed the welfare factors and was entitled to proceed without adjourning.

1. Court of Appeal (Civil Division) — By a majority, allowed the appeal from the residence decision, remitted the matter for rehearing before another judge, directed a fresh CAFCASS report from another officer, and ordered expedition.
2. Worcester County Court — HHJ Hooper QC ordered that the child remain living with his father after a hearing on 6 October 2008.