MFS (Appeal: Transfer of Primary Care)

An appellate court must review the judgment as a whole and should not substitute its own welfare evaluation for that of the trial judge. It should interfere only where an identifiable error makes the decision unsustainable, or where a discretionary conclusion is plainly wrong or disproportionate.

In an appeal involving a transfer of a child’s primary care, the court must give proper weight to the child’s settled arrangements and the consequences of delay. Where the evidence demonstrates continuing emotional harm, parental alienation, and an inability by the resident parent to promote the child’s relationship with the other parent, an immediate transfer may be proportionate. Expert evidence is not unreliable merely because the expert considers the evidential context surrounding disputed facts or fails to mention every piece of material.

The mother sought permission to appeal, and an extension of time, against an order made by HHJ North on 28 September 2018 transferring the child’s primary care from her to the father. The transfer was implemented immediately. The appeal was lodged approximately five weeks late, and by the hearing the child had lived with the father for about six months.

The grounds alleged serious procedural irregularity in the preparation and use of a clinical psychologist’s report, and contended that the transfer was disproportionate. The central issues were whether the expert evidence was sufficiently reliable, whether it had improperly influenced the other evidence, whether the welfare decision was plainly wrong, and whether an extension of time should be granted.

1. Extension of time. The late appeal was serious because the child had already moved home and school and begun to settle. In a case involving an immediate transfer of primary care, an application for permission and a stay should ideally be made before implementation, or urgently thereafter. Applying the approach in Denton and others v TH White Ltd [2014] 1 WLR 3926 and the factors in FPR 4.6, the delay, its consequences and the absence of sufficient justification weighed against relief. The extension was refused.
2. Appellate approach. Under FPR 30.12(3), an appeal may succeed where the decision was wrong or unjust because of procedural irregularity. Permission requires a real prospect of success or another compelling reason. The judgment under appeal had to be read as a whole. Following Re F (Children) [2016] EWCA Civ 546 and Piglowska v Piglowski [1999] 1 WLR 1360, the appellate court was not to engage in narrow textual analysis or substitute its own evaluation. Findings and evaluative conclusions should be disturbed only for an identifiable error or where they could not reasonably be explained or justified, applying Royal Bank of Scotland v Carlyle [2015] UKSC 13 and Henderson v Foxworth Investments Ltd [2014] UKSC 41.
3. Expert evidence. The psychologist was entitled to consider the surrounding evidential material concerning the mother’s attitude to contact and to draw a causal inference within his expertise. An expert need not determine core disputed facts, but may assess the evidential penumbra surrounding them. Nor must an expert refer expressly to every material fact. The report was consistent with the weight of the evidence and was not shown to be inaccurate, biased or unreliable. It had not infected the reports of the social worker, Guardian or child psychiatrist, each of which relied on a wider evidential base.
4. Welfare and proportionality. The decision to transfer primary care was a welfare evaluation within the range reasonably open to the trial judge. The evidence showed continuing emotional harm, a long-standing inability by the mother to promote the child’s relationship with the father, and a substantial risk that contact would deteriorate once proceedings ended. The transfer was proportionate and was not plainly wrong. The reasoning was consistent with Re J (Child Returned Abroad: Convention Rights) [2005] 2 FLR 802, Re G (Children) (Residence: Same-Sex Partner) [2006] UKHL 43 and Re B (Care Proceedings: Appeal) [2013] 2 FLR 1075.
5. Permission to appeal was refused, the extension of time was refused, and the appeal was dismissed.

• Norwich Family Court: HHJ North ordered on 28 September 2018 that the child should live with the father.
• High Court (Family Division): The mother’s late application for permission to appeal and extension of time was refused, and the appeal was dismissed.