S (A Child), Re

In child residence and contact appeals, an order made by consent will ordinarily defeat an appeal directed to the order itself where the judge explained its effect, allowed adequate time for reflection, and verified that consent was active and unequivocal. The judge need not revisit earlier factual findings without a valid reason, nor give a detailed account of every element of the welfare checklist in Children Act 1989 section 1(3), where consent is informed and the child’s welfare has plainly been considered. An appellate court may exceptionally determine an appeal without a transcript or judgment where reliable contemporaneous material sufficiently reveals the basis of the order. Deliberate absence without good reason does not itself require an adjournment, particularly where a prompt review opportunity exists.

The mother appealed two orders made by His Honour Judge Vincent in the County Court sitting at Truro concerning N, then aged eight. On 3 March 2014, the judge made a shared residence order by consent, with N living predominantly with the mother. On 28 May 2014, following serious welfare concerns and the making of a child protection plan, he transferred residence to the father. The mother was absent from the latter hearing and later appealed both orders.

She challenged the validity of her consent, the treatment of allegations of domestic violence, the application of the welfare checklist, the guardian’s representation of N, and the fairness of deciding the second application without a transcript. The central issues were whether either order was unsafe or procedurally unfair and whether the second appeal could properly be determined on the available material.

The appeals were dismissed unanimously. Lady Justice Macur gave the leading judgment, with Lord Justice Patten and Lord Justice Christopher Clarke agreeing.

1. The appeal against the order of 3 March 2014 could not succeed. The judge had explained the possibility of a transfer of residence, fully explained the proposed shared residence order, allowed the mother opportunities to reflect, and expressly tested whether she actively consented rather than merely offering no resistance. Her anxieties did not negate her unequivocal consent.
2. The judge had no valid reason, and therefore no jurisdiction, to revisit the earlier findings that the allegations of domestic abuse were unfounded, apart from the father’s admissions. The alleged assault on the paternal grandfather was unsupported by an independent police report. The judge had also adequately addressed the concern that the father was liable to raise his voice and might alarm N.
3. In the light of the mother’s informed consent, the judge was not required to give a formal judgment detailing his consideration of each factor in the welfare checklist under Children Act 1989 section 1(3). N’s welfare was plainly in mind, and the direction of regular and meaningful contact reflected the paramountcy of that welfare.
4. Exceptionally, the court could determine the appeal against the order of 28 May without a transcript or judgment. Recent judicial involvement, the available welfare material, the mother’s own skeleton argument, and the evidence-based recitals in the order sufficiently disclosed the basis for the decision. The child’s welfare appeared to demand immediate removal.
5. The mother’s deliberate absence, without good reason, did not require an adjournment. The order provided for an early review, giving her an opportunity to challenge its practical effect. She had failed to establish that either judge was wrong or that the procedure was unfair.

• Court of Appeal (Civil Division): in [2014] EWCA Civ 1682, dismissed the mother’s appeals against both orders.
• County Court sitting at Truro: on 3 March 2014, made a shared residence order by consent; on 28 May 2014, transferred residence of N to the father.