Re M-A (A Child)

On an appeal concerning child arrangements, the Court of Appeal should be slow to interfere with a first-instance judge’s assessment of witnesses and welfare, particularly where the judge heard the evidence directly and the conclusion was clearly open on the evidence. A welfare decision is not undermined merely because the judgment could have given fuller recognition to one parent’s strengths or the other’s shortcomings, provided the overall determination remains sound. Conduct may fall within the concept of coercive behaviour under Practice Direction 12J, but that classification need not affect the result where the decisive issue is its impact on the child. Procedural concerns about allocation of an appeal route do not necessarily justify setting aside an otherwise valid welfare decision.

The appeal arose from an order made by HHJ Jordan on 12 January 2018 that a three-year-old child should live with his father in Canada and spend holidays with his mother in England. This replaced an existing arrangement under which the child divided his time between both parents and countries.

The child had been diagnosed with autism and the parents had experienced sustained conflict. The mother challenged the judge’s findings that she had not changed sufficiently through therapy, that the child had suffered harm from the parental conflict, and that her conduct amounted to domestic abuse. She also challenged the welfare evaluation and sought to rely on fresh evidence. The central issue was whether the judge’s findings and ultimate welfare decision were open to him and sufficiently supported by the evidence.

Appeal dismissed. Lord Justice Peter Jackson gave the reasons, with Lord Justice Hamblen agreeing. An updated order, largely agreed between the parties, was substituted.

1. The fresh evidence was not formally admitted. It was contentious, was unlikely to have an important influence on the result, and could not affect the outcome of the appeal.
2. A challenge to a first-instance judge’s assessment of a witness in a welfare case is exceptionally difficult. The trial judge had heard the evidence and was uniquely placed to assess whether the mother’s therapy had produced genuine change or merely outward compliance. The Children’s Guardian had reached the same overall view. The finding that the mother had not changed sufficiently to meet the child’s emotional needs was clearly open to the judge.
3. The judgment could have given a more nuanced account of the mother’s strengths and the father’s shortcomings. However, that imperfection did not undermine the ultimate decision. There was ample evidence that the child had suffered harm from the parental conflict, faced a continuing risk of harm, and required a stable home and consistent direction in relation to his treatment. The judge was entitled to conclude that the father offered the better prospect of stability.
4. The definition of domestic abuse in paragraph 3 of Practice Direction 12J includes coercive behaviour. Such behaviour can include malicious social-media campaigns and attempts to cause damage by contacting employers. The analysis added little of significance here because the focus was the effect on the child, and the outcome did not materially depend on the domestic-abuse classification.
5. The existing restriction under section 91(14) of the Children Act 1989 was unnecessary in the updated order. The court also observed that judges considering reallocation to High Court level should normally inform the parties beforehand, so that they can address the appropriateness of reallocation and the consequences for any appeal. The court referred to Re M (A Child) [2017] EWCA Civ 2356 in this procedural context.

1. Court of Appeal (Civil Division): Appeal from the Manchester Family Court dismissed on 25 April 2018. An updated order was substituted.
2. Manchester Family Court: HHJ Jordan, sitting as a Deputy High Court Judge, ordered on 12 January 2018 that the child should live with his father in Canada and spend holidays with his mother in England.