B (A Child)

A court may make an order under section 8 of the Children Act 1989 of its own motion, without a formal or oral application, where the parties have sufficient notice that the issue will be considered. A change of residence is not confined to cases of implacable hostility or intractable dispute. The question is whether it is required by the child’s welfare, having regard to contact, the risk of emotional harm from continuing litigation, likely compliance with less intrusive orders, and the practical and emotional impact of the change. An appellate court should not readily interfere with a trial judge’s evaluative welfare judgment, particularly where the judge heard the witnesses, unless there is material misdirection or another appealable error.

The mother sought permission to appeal against an order of HHJ Evans-Gordon dated 8 July 2015 transferring the residence of her three-year-old daughter from her to the father. The proceedings followed persistent disputes about the progression from visiting to overnight and holiday contact, together with alleged breaches of contact orders. The mother argued that the judge had acted beyond an enforcement application, wrongly assessed short video recordings said to show distress, failed to evaluate the practical consequences and positive features of her care, and made a disproportionate order contrary to Article 8. The central issues were whether the order could be made without a formal application and whether the welfare evaluation disclosed an appealable error.

1. Permission refused. The proposed grounds disclosed no real prospect of success.
2. The court could make an order under section 8 of the Children Act 1989 of its own motion. By virtue of section 10(1)(b), no formal application, or oral application by a party, was required. In any event, the mother had been sufficiently alerted during the proceedings that the living arrangements for the child might be reconsidered.
3. The judge was entitled to reject the mother’s evidence that overnight contact caused extreme distress. Although the judge may have misunderstood the dates of the video recordings, she had other evidence available to her. The recordings were short and equivocal as to the cause of the distress, and the CAFCASS evidence and other evidence did not establish a connection with contact. The judge was not asked to watch the recordings at the hearing.
4. Change of residence orders are unusual, but are not confined to cases of implacable hostility or intractable dispute. The judge was entitled to conclude that extended contact was necessary for the child’s welfare, that continuing litigation created a risk of emotional harm, and that the mother was unlikely to comply with less intrusive orders. She considered alternatives, including a suspended order, the effect of the change on the child, the welfare checklist and the child’s good relationship and familiarity with the father.
5. The order was not disproportionate on the material before the court. The absence of a fuller CAFCASS evaluation, and the judge’s limited explanation of some practical matters, did not establish material misdirection. An appellate court should not readily interfere with a value judgment formed by a judge who heard the witnesses and assessed the history.

1. Court of Appeal (Civil Division): Permission to appeal refused.
2. Birmingham Civil Justice Centre: HHJ Evans-Gordon made an order on 8 July 2015 transferring the child’s residence from the mother to the father.