S (A Child)

A child arrangements appeal is not a rehearing. The child’s welfare is paramount under section 1(1) of the Children Act 1989, with regard to each relevant limb of the welfare checklist. An appellate court must respect the first-instance judge’s advantage in seeing witnesses and evaluating evidence, and should not substitute its own discretion unless a material error or serious procedural irregularity is shown. A CAFCASS officer need not investigate matters that are not in issue, and a qualified view is not an unqualified recommendation. The importance of raising siblings together remains a relevant welfare consideration. Later developments ordinarily fall for consideration by the lower court.

The father appealed against a child arrangements order made by HHJ Hindley QC in the Family Court sitting at Birmingham on 22 December 2015, under which the child was to live with the mother and spend time with him. He alleged inadequate consideration of risks of removal and safeguarding concerns, unfair findings, insufficient assessment of the mother, excessive weight given to the sibling relationship and status quo, and failure to follow the CAFCASS officer’s view. The mother opposed the appeal. The central issue was whether the judge’s welfare evaluation was wrong or vitiated by serious procedural error or other irregularity.

Appeal dismissed. Keehan J gave the judgment of the court, with Black LJ and Beatson LJ agreeing.

1. Under section 1(1) of the Children Act 1989, the child’s welfare and best interests were paramount. The judge also had to consider each relevant limb of the section 1(3) welfare checklist.
2. The appeal was not a rehearing. Applying the restraint required by Piglowska v Piglowski [1999] 1 WLR 1360 and the caution expressed in Re J (Child Returned Aboard: Convention Rights) [2005] 2 FLR 802, the appellate court had to respect the trial judge’s advantage in seeing the parties and witnesses. That advantage extended to the evaluation of facts. The court should not substitute its own discretion through a narrow textual analysis of the judgment.
3. The judge had properly considered the alleged risk of removal, the risks presented by EF, safeguarding enquiries, the social worker’s cursory report, the sibling relationship, the status quo and the CAFCASS evidence. Her findings and conclusions were open to her on the totality of the evidence and her decision fell within her discretion.
4. A CAFCASS officer was not required to investigate every aspect of a parent’s or child’s life, or matters not in issue. Ordinary enquiries might be made of relevant professional agencies, with wider enquiries only where expressly required by the court. The officer’s view was qualified and non-conclusive, so the judge was entitled to assess it alongside the other evidence.
5. C v C (Minors: Custody) [1988] 2 FLR 291 remained good law on the importance of raising siblings together where possible. That consideration was subject to safeguarding concerns and did not displace the overall welfare assessment.
6. Developments after the December judgment could not establish that the original decision was wrong. They were matters for the Family Court on any further application. The appeal was therefore dismissed.

• Court of Appeal (Civil Division) dismissed the father’s appeal against the child arrangements order: [2016] EWCA Civ 495.
• Family Court sitting at Birmingham, HHJ Hindley QC, made the child arrangements order on 22 December 2015.