C (A Child), R v

An appeal in a children case can succeed only where the first-instance judge was wrong or there was a procedural or other irregularity. Permission requires a real prospect of success or another compelling reason. An appellate court will rarely interfere with findings based on the judge’s assessment of witnesses. A failure expressly to list a child’s wishes and feelings in the welfare analysis is not necessarily material where the judgment otherwise addresses the child’s welfare comprehensively and the factor was unlikely to be decisive. The principles governing certification of an application as totally without merit may apply to applications for permission to appeal in the Family Division.

The mother sought permission to appeal, and an extension of time, from an order of His Honour Judge Wood dated 14 December 2017 that her daughter, C, should live with her father and spend reasonable time with her mother.

The first-instance proceedings followed extensive litigation concerning contact. The mother alleged procedural failures, inadequate investigation by the children’s Guardian, lack of judicial continuity, unfairness arising from her ill-health at the hearing, and failure to apply the welfare checklist, particularly C’s wishes and feelings.

The central questions were whether the application was in time, whether there was any arguable procedural irregularity or error in the welfare evaluation, and whether permission should be granted.

1. Extension of time. The application was in time because the appellant’s notice was filed within 21 days of approval of the order. In any event, the court extended time to the date on which the notice was received by the Family Division Appeals Office, applying rule 30.4 of the Family Procedure Rules 2010.
2. Appellate threshold. An appeal in a children case can succeed only if the first-instance judge was wrong or there was a procedural or other irregularity. Permission requires a real prospect of success or another compelling reason. The first-instance judge had considered the evidence, the history of the litigation and C’s welfare in detail.
3. Procedural complaints. The mother’s criticisms of the children’s Guardian were not substantively advanced at trial. In any event, the Guardian had long involvement, had produced several reports, had observed C with both parents and had undertaken a wishes and feelings session. There was no basis for treating reliance on that evidence as erroneous. Nor was there evidence that lack of earlier judicial continuity caused the parental conflict. The mother had not shown a serious procedural irregularity arising from her ill-health during the hearing, particularly since the judge had afforded her a break and she had agreed to continue.
4. Welfare analysis. The judge had addressed the relevant issues, including C’s emotional needs, the effect of a change of residence, her relationships with both families and the risk of continuing exposure to adult conflict. Although the judge did not include C’s wishes and feelings in the list of factors identified as particularly pertinent, that omission was not significant. C was very young, her wishes were unlikely to be decisive, and the judgment demonstrated a careful holistic assessment of her welfare.
5. Disposition. There was no real prospect of successfully challenging the order that C live with her father and no procedural or other irregularity. Permission to appeal was refused. The application was certified as totally without merit. The court applied the principles discussed in Wasif v Secretary of State for the Home Department [2016] EWCA Civ 82 concerning such certification.

• High Court (Family Division): Permission to appeal from the Family Court order was refused. The application was certified as totally without merit.
• Family Court at Newcastle upon Tyne: His Honour Judge Wood ordered that C should live with her father and that the father should make C available to spend reasonable time with the mother. The order was dated 14 December 2017 and approved on 5 January 2018.