R (A Child)

A serious error in understanding a parent's position does not invariably require a child-arrangements order to be set aside. An appellate court may uphold the result where, on the evidence available at the hearing, the order fell within the judge's wide discretion and was plainly right under the section 1 welfare checklist. Shared residence concerns the child's living arrangements, whereas shared parental responsibility concerns joint decision-making and is distinct. A material change in circumstances after permission to appeal, particularly one affecting whether permission should have been granted, should be promptly notified to the appeal court and the respondent. An appeal seeking only a temporary order in the same terms as the order below may be disproportionate where a variation application is imminent.

The parents appealed from an order made by Her Honour Judge Pearlman on 18 September 2009. The order provided for shared residence, with the child's school-week care weighted towards the father. Permission to appeal was granted by Ward LJ on the basis that the mother arguably had not received a fair opportunity to present her case. The mother contended that the judge had misunderstood her position on shared residence. Before the appeal, she issued a variation application after securing accommodation close to the child's school, but did not notify this court. The appeal concerned the effect of the judicial error, the later change in circumstances, and the appropriate interim relief.

Appeal dismissed. Lord Justice Thorpe gave the principal judgment, with Lady Justice Arden agreeing.

1. The complaint of procedural unfairness was rejected. The case required an urgent decision, the mother had appeared before two earlier courts and before HHJ Pearlman, and nobody had sought further investigation or an adjournment. She had been heard and the judge had reached a clear conclusion.
2. The judge had nevertheless made a serious error. She misunderstood the mother's position by treating shared parental responsibility as equivalent to shared residence. Matters such as medical care, schooling and taking the child abroad concerned parental responsibility, not where the child lived.
3. Ordinarily, that error would justify allowing the appeal and either substituting a fresh order or remitting the case. The court declined to do so because the order was within the wide ambit of the judge's discretion and was plainly the right order on the evidence available on 18 September, applying the section 1 welfare checklist. The judge had properly considered the child's wishes and feelings, the stability established by the father, schooling, the mother's circumstances and the practical arrangements for the child.
4. The mother's later accommodation close to the school created a materially different situation, to be addressed on the variation application. It did not make the existing order prejudicial or require an interim order in identical terms before that application was heard.
5. Lady Justice Arden added that paragraph 52.3.2 of the Civil Procedure Rules 2009 applies equally to a material change in circumstances after permission to appeal. The appellant should notify the appeal court and the respondent in writing. Directions, mediation or other case-management steps might then avoid an unnecessary appeal. An appeal pursued only to obtain a short-term order in the same terms as the order below was disproportionate in the circumstances. The court agreed the order dismissing the appeal.

1. Court of Appeal (Civil Division): Permission to appeal was granted by Ward LJ on 25 January 2010. The appeal was dismissed unanimously: [2010] EWCA Civ 303.
2. Principal Registry of the Family Division: Her Honour Judge Pearlman made a shared residence order on 18 September 2009, with the child's school-week care weighted towards the father.