D (Children),Re

In a child-welfare case, an appellate court should not interfere with a first-instance balancing exercise merely because the order causes severe short-term distress or another outcome is arguable. Intervention is justified only where the decision is plainly flawed or falls outside the ambit of reasonable disagreement. The judge must weigh all relevant welfare considerations, including established care and attachment, parental devotion and legitimate anxieties, the risk of serious psychological harm, and the protective capacity of proposed carers. A finding that the existing arrangement is causing profound emotional harm may justify changing residence where that is the best available prospect for the children’s longer-term welfare.

Two boys lived with their mother following findings that their father had sexually abused their half-sister. The mother believed that the father had abused the boys and that contact with their paternal family should be avoided.

The High Court initially left the boys with their mother subject to contact with their grandparents. It later made an order for contact with the father and, in February 2010, ordered that, if the mother failed to comply with earlier orders, the boys should reside with their paternal grandparents. An earlier appeal against the initial order had been dismissed.

The mother sought permission to appeal, arguing that the judge had substituted one form of harm for another, failed to give proper weight to the father’s conduct, and should have left the boys in her care. The central issue was whether the judge’s welfare balancing exercise was plainly wrong or otherwise warranted appellate intervention.

1. Disposition. The application for permission to appeal was refused. Lord Justice Aikens agreed with the judgment of Lord Justice Wall.
2. Welfare assessment. The judge had treated the children’s welfare as the first and paramount consideration and had conducted a proper balancing exercise. He considered the mother’s devotion, her generally good and competent care, her legitimate anxiety about the father’s conduct, the children’s existing relationship with her, the real risk of serious psychological harm if the existing belief system continued, the grandparents’ ability to protect the children, and the likely short-term distress caused by changing residence.
3. The father’s conduct was not ignored. The judge expressly recognised the genesis of the problem and had regard to the mother’s concerns, but correctly concluded that those matters were not determinative of the children’s welfare.
4. Appellate restraint. A welfare decision involving the exercise of discretion should not be disturbed unless a material feature takes it outside the ambit of reasonable disagreement or makes it plainly flawed. The Court of Appeal was not entitled to substitute its own balance merely because the proposed change of residence would cause distress. The judge was entitled to prefer the prospect of longer-term psychological recovery and a normal relationship with protective grandparents over continuation of an arrangement carrying a serious risk of emotional harm.
5. The grounds disclosed no realistic prospect of success, and permission was therefore refused.

• Court of Appeal (Civil Division): on 7 April 2010, the application for permission to appeal was refused: [2010] EWCA Civ 496.
• High Court of Justice, Family Division: Mr Justice Coleridge ordered that the children should reside with their paternal grandparents if the mother failed to comply with specified earlier orders.