S (A Child)

In child-welfare proceedings, the Court of Appeal will not interfere with a residence decision made in the trial judge’s discretion where the judge acted on material properly available, considered relevant factors, and avoided irrelevant matters. A tightly managed hearing, including determination on submissions and existing documents, can be fair in a long-running case; objections to such directions should be made promptly. A child’s wishes and feelings must be considered by reference to age and understanding, but need not be accepted at face value where alienation may affect their reliability. Expert opinion is not a legal test, and written expert evidence may suffice without recalling the expert where delay weighs against it.

After a decade of contact litigation, a father applied for transfer of his nearly 12-year-old son’s residence from the mother. On 25 September 2009, the circuit judge directed a one-day hearing on submissions, with no further evidence, relying on the extensive existing papers and expert material. On 4 January 2010 he made a residence order in favour of the father.

The mother and the child’s guardian sought permission to appeal. They challenged the absence of fuller oral and expert evidence, the judge’s changed assessment, his treatment of the guardian, and his evaluation of the child’s wishes. The central issues were whether the case management and hearing were unfair, and whether the welfare decision was plainly wrong.

1. The applications for permission to appeal were refused. Lord Justice Thorpe held that the judge’s case-management directions and rulings at the substantive hearing were within the discretionary ambit. The parties had received clear notice that the residence application would be decided on submissions, with no further evidence, and no party had promptly challenged those directions.

2. Lord Justice Wall agreed and emphasised that case-management directions may be challenged in the Court of Appeal, but must be challenged swiftly and for good reason. The judge had extensive knowledge of the long-running proceedings and a substantial body of existing material. He was entitled to decide the application without further oral evidence.

3. The expert’s reliance on an American mental-health source did not establish a legal test governing the residence decision. The distinction between professional guidance and the judge’s legal responsibility had to be maintained. The written answers and earlier written and oral evidence did not make the expert’s recall necessary, particularly given the further delay it would cause.

4. The child’s wishes and feelings had to be taken into account in accordance with his age and understanding. Greater respect will generally be due as a child becomes older, but expressed wishes need not be accepted at face value where evidence of alienation affects their reliability. The authority Re S (Minors) (Access: Religious upbringing) [1992] 313 supported that approach.

5. The judge was entitled to revise his earlier assessment after examining the existing material, receiving fuller argument, and reflecting before judgment, even though no new evidence had been filed. His ultimate task was to decide the child’s best interests, including whether transfer was proportionate and promoted the child’s family life. Lord Justice Rimer agreed with both judgments.

1. Court of Appeal (Civil Division): applications for permission to appeal refused. The court upheld the case management and welfare decision of the court below.
2. High Court of Justice, Family Division (Coventry District): on 4 January 2010, His Honour Judge Bellamy granted the father’s application for a residence order.