T (Children), Re

In a finely balanced child-residence dispute, the Court of Appeal should not substitute its own assessment for that of the trial judge. The appellate question is whether the judge’s discretionary decision was plainly wrong or outside the generous ambit within which reasonable disagreement is possible. That remains so where the appellate court feels personal or instinctive unease, or thinks it might have reached a different result. A biological relationship is not a free-standing factor requiring a particular outcome; it matters only insofar as it bears on the children’s welfare. The trial judge was entitled to weigh the children’s established relationships, wishes, stability and emotional needs, together with the proposed arrangements for continuing contact, and to prefer continuation of residence with the grandparents.

The mother applied for the residence of her two children, D and L, to be transferred from their paternal grandparents to her. The children had lived with the grandparents since 2004, and a 2005 order provided for their residence with them and contact with the mother. Following a hearing in April 2010, His Honour Judge Cartlidge confirmed residence with the grandparents and made provision for substantial holiday, telephone and webcam contact with the mother.

The mother appealed to the Court of Appeal. She challenged the judge’s treatment of the grandparents’ age, the absence of a biological link between L and the grandparents, risks arising from the father’s conduct, the prospect that contact with the grandparents would be curtailed, and delay in determining the application under Article 6 of the European Convention on Human Rights. The central issue was whether the judge’s welfare-based exercise of discretion was one with which the appellate court could properly interfere.

1. Appeal dismissed. The decision to continue the children’s residence with the grandparents was a classic exercise of the trial judge’s judicial discretion. The Court of Appeal could not intervene merely because it might have made a different order or felt uneasy about the result.
2. The governing appellate principle, identified by the President of the Family Division from G and G (Minors: Custody Appeal) and the passages cited from Bellenden (formerly Satterthwaite) v Satterthwaite and Clark-Hunt v Newcombe, was that intervention requires the decision to exceed the generous ambit within which reasonable disagreement is possible and to be plainly wrong.
3. Lord Justice Wilson held that the judge had considered the competing welfare factors. He was entitled to accept that the grandparents had cared for the children successfully over most of their lives, that their relationships were close and loving, and that D wished to remain with them. He was also entitled to attach substantial weight to his assessment that the mother and Mr O might fail to support the children’s emotional needs and might restrict contact with the grandparents.
4. The judge was not required to treat the grandparents’ ages as determinative, and the absence of a biological relationship between L and them did not itself undermine their ability to meet her needs. The children’s welfare, rather than biological connection as a stand-alone feature, remained the controlling consideration, consistent with Re B (A Child).
5. The delay was unfortunate, but the court lacked a sufficient basis to attribute responsibility for it and held that a five-year rather than six-year status quo did not have substantially different significance. The Article 6 point had not been made below and did not establish a ground for appellate intervention.

• Court of Appeal (Civil Division): On 17 November 2010, the appeal from the order of His Honour Judge Cartlidge was dismissed. The court had granted permission and heard the substantive appeal forthwith.
• Newcastle-upon-Tyne County Court: On 19 April 2010, His Honour Judge Cartlidge refused to transfer residence to the mother, confirmed the children’s residence with the grandparents, and ordered contact with the mother including half of school holidays, telephone contact and webcam contact.