W (A Minor)

Permission to appeal a discretionary residence decision requires more than disagreement with the first-instance judge. The applicant must show an error of law, an arguably plainly wrong exercise of discretion, a reasonable prospect of success, or another compelling reason for an appeal to be heard. A change of residence must be welfare-based, not punitive. Where a parent’s sustained hostility to the other parent threatens significant emotional harm to the child, the court may balance the disruption of removal against the child’s need for a meaningful relationship with both parents. An appellate court will respect the trial judge’s credibility and welfare assessments where the decision was properly open on the evidence.

The mother of a three-year-old girl sought permission to appeal orders made by Her Honour Judge Ludlow on 14 October 2010. The orders dismissed her applications for residence and extended or unsupervised contact, made detailed contact arrangements, imposed a Family Assistance Order and transferred the child’s residence to the paternal grandmother under a separate order.

The appeal heading identifies the lower court as Ipswich Crown Court, while the judgment’s narrative describes the orders as made in Ipswich County Court. The mother alleged that the judge had acted unlawfully or exercised her discretion wrongly. The central issues were whether there was an arguable error of law or an arguably plainly wrong welfare decision, and whether the permission threshold was met.

The Court of Appeal, constituted by Sir Nicholas Wall P, dismissed the mother’s application for permission to appeal.

1. Permission and appellate function. Under the Civil Procedure Rules 1998, CPR 52.3(6), permission required either a reasonable prospect of success or another compelling reason for the appeal to be heard. The appellate review of a discretionary residence decision was confined to an error of law or an exercise of discretion that was arguably plainly wrong. Mere disagreement with a decision properly open to the first-instance judge was insufficient.
2. Statutory framework. A residence order was discretionary under section 10(1) of the Children Act 1989. The child’s welfare was paramount under section 1(1), and the welfare checklist in section 1(3) had to be applied. No issue arose under Article 6 of the European Convention on Human Rights.
3. Application to the decision below. Judge Ludlow had applied the statutory welfare framework and had not changed residence to punish the mother for disobeying court orders. She had instead conducted a welfare balancing exercise. She weighed the child’s relationship with her mother and the disruption caused by separation against the emotional harm caused by the mother’s continuing hostility to the father and her persistent obstruction of contact. The judge was entitled to conclude that remaining with the mother created a substantial risk of significant future harm and that residence with the paternal grandmother better served the child’s welfare.
4. Evidence and disposition. The Court of Appeal would not interfere with the judge’s assessments of credibility and welfare where there was ample material on which she could properly act. The order was plainly open to her. The appeal had no reasonable prospect of success, and there was no other compelling reason for it to be heard. The mother retained the opportunity to seek a later change by demonstrating genuine change and that residence with her would serve the child’s best interests.

• Ipswich Crown Court / Ipswich County Court: Orders made on 14 October 2010 dismissed the mother’s applications for residence and extended or unsupervised contact, provided for contact and a Family Assistance Order, and transferred the child’s residence to the paternal grandmother under a separate order.
• Court of Appeal (Civil Division): Permission to appeal was refused and the application was dismissed.