F (Children), Re

An appellate court should not allow an appeal against a welfare decision where the available record is materially incomplete and does not establish that the first-instance judge erred. Missing transcripts of evidence, submissions or the approved judgment may make meaningful appellate scrutiny impossible. The appellate court may nevertheless direct urgent local reconsideration where subsequent events suggest that existing arrangements may no longer meet the children’s welfare needs. In assessing welfare, the children’s wishes and feelings must be considered in accordance with their age and understanding. The impact of changes in residence and schooling, and the adequacy of educational support for particular needs, are also material considerations under the Children Act.

The mother appealed against a decision of HHJ Hooper QC in Worcester County Court on 23 August 2012. The judge had changed the residence of two boys, aged 14 and 12, from the mother’s care in Hagley to the father’s care in Tewkesbury, together with their school. The mother argued that the judge had failed to assess the older boy’s wishes and feelings in light of his autistic-spectrum difficulties, the impact of changing residence and school, and the adequacy of the proposed education. The Court of Appeal had only a solicitors’ note of the judgment and no transcripts of the evidence or submissions. It also considered developments since the original decision and the need for prompt local review.

Appeal dismissed. McFarlane LJ gave the judgment, with Arden LJ and Thorpe LJ agreeing.

1. The appellate court could not determine whether HHJ Hooper had erred. The record was materially incomplete: there was no approved judgment, transcript of the evidence or transcript of counsel’s submissions. The court therefore lacked the material needed to assess how the first-instance judge had conducted the welfare balancing exercise.
2. The court identified several potentially important welfare issues. These included the boys’ wishes and feelings, considered in accordance with age and understanding under section 1(3)(a) of the Children Act; the effect of changing residence and school; and whether the Tewkesbury school could provide education and support suited to the older boy’s particular needs. The court expressly declined to decide whether the judge had failed to address those matters.
3. Developments since the decision, including difficulties concerning contact and concerns about educational support, justified the case being considered again by a local judge. The appellate court was not in a position to make fresh residence or education orders itself. A prompt local hearing, preferably before HHJ Hooper if available, was required.
4. The omission of Wednesday contact from the order, despite the stated intention to mirror the previous arrangements, could have been raised before the first-instance judge for clarification and would not alone justify an appeal.

Directions were made for an application to vary the contact and education orders, sequential statements, a report on developments and present difficulties, an expedited interim hearing concerning Christmas contact, and prompt transcription of the judgment and earlier permission judgment.

• Court of Appeal (Civil Division): [2012] EWCA Civ 1793. Appeal dismissed, with directions for prompt reconsideration in the Worcester County Court.
• Worcester County Court: HHJ Hooper QC changed the boys’ residence and school on 23 August 2012.