MH (A Child), Re

Permission to appeal in Children Act proceedings requires a real prospect of success or another compelling reason. An appellate court does not rehear the welfare decision and may intervene only where the first-instance judge was wrong or the order or process was unjust or procedurally irregular.

Where a child spends substantial periods with both parents, an order may describe the child as living with both, even where one parent has more time. The wording should reflect the practical arrangements and avoid discriminatory implications. An agreed recital must, however, accurately record the parties’ consent. An appeal may therefore succeed on the accuracy of the recital while failing on the substantive child arrangements.

The mother appealed, or sought permission to appeal, from an order made by HH Judge Hughes QC in Children Act proceedings concerning arrangements for the parties’ young daughter. The order provided for the child to spend substantial regular and holiday periods with her father, while spending more time with her mother. It also recorded that the parties had agreed that the child would live with both parents.

The mother challenged the wording of that recital, the interpretation of provisions concerning travel to Poland, the dates for fixing holidays, and the length of the father’s summer holiday periods. The central issues were whether the first-instance judge had erred, whether the recital accurately recorded consent, and whether the order should be varied on appeal.

1. Appellate approach. The court was not conducting a rehearing. It could interfere only if the first-instance judge was wrong, or if the order or process was unjust or unfair because of procedural or other irregularity. Permission required a real prospect of success or another compelling reason.
2. “Live with” wording. A child arrangements order may provide that a child lives with both parents where the child spends substantial time with each. The practical arrangements are important, but neutral language can also recognise that both parents are committed to the child. Here, the child was to spend more time with the mother but more than 100 days each year with the father, including regular overnight and holiday contact. The judge was not wrong to use the expression “live with” in describing those arrangements.
3. Consent. The first-instance judge was wrong to record that the mother had agreed to the child living with both parents. Although earlier drafts may have reflected agreement, the mother had not consented to the final wording. The recital was therefore amended to record agreement that the child would spend time with both parents, while noting the lack of agreement about the “live with” formulation.
4. Holiday arrangements. The restriction that shorter trips abroad should not intrude into the father’s time did not require complete inflexibility. It permitted arrangements in which contact was moved and compensated, provided the father did not lose time with the child. The dates for fixing holidays were a sensible compromise, and the ordered summer periods were not shown to be wrong or inappropriate for the child’s age.
5. Permission to appeal was granted and the appeal allowed on the recital point only. In all other respects permission was refused.

• Central Family Court: HH Judge Hughes QC made the child arrangements order in proceedings numbered ZC15P01591. Permission to appeal was refused.
• High Court (Family Division): On appeal, permission was granted and the appeal allowed only to correct the recital recording the mother’s consent. Permission was otherwise refused.