H (A Child)

Permission to appeal against a child-arrangements order should be refused where the proposed challenge identifies no viable ground with a real prospect of success. A first-instance welfare decision will not be treated as flawed merely because every implication of a relevant factor was not addressed in express terms, provided the judgment shows that the factor was considered in its proper context. Decisions about contact and travel arrangements fall within the trial judge’s wide discretion. The appellate court should intervene only where an appealable error is shown, rather than re-evaluating a reasonable welfare assessment.

The mother sought permission to appeal an order made by HHJ Penna in the Manchester County Court on 26 July 2010. The order provided for the child to reside with his father on alternate weekends, involving travel between Manchester and Ilford.

The child was one year old and had a club foot requiring the use of boots and a splint for approximately 12 to 14 hours daily. The mother argued that the travel disrupted his routine and treatment, and that the judge had failed to take those matters into account. The central issue was whether the proposed appeal disclosed an arguable error with a real prospect of success.

Application refused. The mother had not identified a viable ground of appeal against the order.

1. HHJ Penna had made a careful welfare assessment. She found that both parents were capable of caring for the child and recognised the importance of his relationship with each of them.
2. The child’s disability and treatment had not been overlooked. The judge referred expressly to the club foot and boots, considered the importance of routine, and addressed the likely effect of the train journey. Her failure to discuss the brace and every consequence of travel in precise terms did not establish that those matters had been ignored.
3. The medical information supported the conclusion that the proposed arrangements would not cause unacceptable disruption. It required consistent use of the boots and splint, particularly overnight and when the child slept in his normal sleeping place, but did not establish that missing two daytime nap periods each fortnight would materially affect the treatment.
4. The order was within the judge’s wide discretion. The provision for a review allowed any practical problems to be considered if they arose. The proposed appeal therefore had no real prospect of success, and permission was refused. The formal order was: Application refused.

• Court of Appeal (Civil Division): permission to appeal the order of HHJ Penna was refused: [2010] EWCA Civ 1363.
• Manchester County Court: HHJ Penna made the child-arrangements order on 26 July 2010.
• Court of Appeal (Civil Division): Hughes LJ previously refused a stay of the contact provision in August 2010.