C (Children)

In private-law family proceedings, the judge has an inquisitorial role and must promote the children’s welfare as the paramount consideration. The judge may summarily end or limit an inquiry, including after hearing one parent’s evidence, if continuing it offers no solid advantage to the children.

Where a parent seeks to displace a long-standing residence arrangement, the judge may require that parent to establish on the balance of probabilities compelling reasons for changing the children’s residence. The form of procedure is pre-eminently for the trial judge, subject to appellate intervention only for legal error, misdirection or a decision outside the proper ambit of discretion.

The father appealed against His Honour Judge Cliffe’s decision in the Bradford County Court on 16 April 2012. The children lived with their mother under a residence order made in 2008.

The father alleged deficiencies in the children’s medical, dental and day-to-day care, including alleged injuries, and sought a fact-finding inquiry and a change of residence. After hearing the father’s evidence, the judge declined to require the mother to give evidence. He concluded that none of the allegations justified changing residence and dismissed the father’s application.

The appeal raised whether the judge had adopted an unfair procedure and imposed an impermissibly high test on the father.

1. Appeal dismissed. Munby LJ, with whom Thorpe LJ agreed, held that the judge had made no error of law, approach or discretion.

2. Family proceedings differ from ordinary civil litigation. A family judge has an essentially inquisitorial role and must further the children’s welfare, which is the paramount consideration. The judge has a broad discretion to decide how an application should be pursued. That may include summarily dismissing an application lacking sufficient merit, determining it on written evidence and submissions, or hearing an applicant’s evidence before deciding whether further investigation is justified.

3. The operative question was whether there was a solid reason, in the children’s interests, to continue the proposed inquiry. If further exploration might bring a solid advantage to the children, it should proceed in an appropriate form. If no advantage would be obtained, the judge may properly bring the process to an end.

4. The existing residence order, in place since 2008, was the relevant starting point. It was therefore proper to require the father, who sought to change it, to establish on the balance of probabilities compelling reasons for moving the children. Having heard the father’s evidence and considered the material, Judge Cliffe was entitled to conclude that the father had not proved any matter capable of justifying that change.

5. The refusal to hear the mother’s oral evidence was robust but fell within the generous ambit of the trial judge’s discretion. The decision was plainly open to him and could not be characterised as plainly wrong.

Thorpe LJ additionally urged the parents to reduce their conflict for the children’s long-term welfare.

• Court of Appeal (Civil Division): dismissed the father’s appeal: [2012] EWCA Civ 1489.
• Bradford County Court: on 16 April 2012, His Honour Judge Cliffe dismissed the father’s application to change the children’s residence after deciding that no further fact-finding inquiry was justified.