F (Children)

In disputes about children, the court must focus on their future welfare rather than allowing adult allegations and counter-allegations to dominate the case. A parent who alleges that the other parent is unsafe or seriously unfit, but proposes that the children spend substantial unsupervised time with that parent, presents an internally inconsistent case. High parental conflict may justify rejecting joint residence or an equal division of care, while leaving regular overnight contact in place. Decisions about residence and contact are matters of welfare discretion. The Court of Appeal will not intervene where the order was open to the judge on the evidence and was not plainly wrong. Costs in family proceedings are also discretionary, and an appeal requires an error of law or an exercise outside the proper discretion.

The father applied for permission to appeal against orders made by HHJ Orrell in the Derby County Court concerning the residence and contact arrangements for his two sons. Following a two-day hearing in November 2011, the judge rejected serious allegations made by the mother against the father, rejected the father’s allegations concerning the mother’s mental health, placed the children’s primary residence with the mother, and ordered substantial contact with the father. The judge later gave written reasons on 1 May 2012 and ordered the father to pay one-third of the mother’s costs from September 2010.

The father challenged the process, the residence decision, the contact arrangements and the costs order. The central issue was whether any of those matters disclosed an arguable error with a reasonable prospect of success.

1. Permission to appeal refused. The father’s procedural and technical complaints did not demonstrate any material impact on the welfare determination. The first-instance judge had rejected the mother’s serious allegations and had given clear reasons for preferring her case on the children’s future care.
2. The court’s task in a children case is to focus on the future welfare of the children. The proceedings should not become concerned entirely with the adults’ past relationship, allegations and counter-allegations. The father’s inability to identify clearly the care arrangement he considered best for the children was significant evidence of that lack of focus.
3. The father’s case contained a fundamental inconsistency. He alleged that the mother was so unfit, dishonest and psychologically compromised that the children were unsafe in her care, yet he supported substantial unsupervised care by her, first on a 50/50 basis and later on a 30/70 basis. That contradiction undermined his challenge to the order placing the children primarily with the mother.
4. Given the high level of conflict between the parents, HHJ Orrell was entitled to reject joint residence and an equal division of care. His choice of the mother as primary carer was open to him on the evidence and disclosed no reasonable prospect of a successful appeal.
5. The judge appeared to have misunderstood the extent to which the contact order reflected the CAFCASS recommendation. Nevertheless, the order for regular overnight contact, without a 50/50 division, was within the range of orders available in light of the continuing conflict. It was not plainly wrong.
6. Costs in family proceedings are matters of judicial discretion. Appellate intervention is justified only where the judge has exceeded that discretion or applied the law incorrectly. The order requiring the father to pay one-third of the mother’s costs from September 2010 was proportionate and disclosed no such error.

• Court of Appeal (Civil Division): Lord Justice McFarlane refused the father’s application for permission to appeal, reported at [2013] EWCA Civ 49.
• Derby County Court: HHJ Orrell made residence and contact orders on 18 November 2011. Written judgment was delivered on 1 May 2012, with a separate costs order requiring the father to pay one-third of the mother’s costs from September 2010.