Re A, B and C (Children: Nesting Arrangement)

At an interim family hearing, written evidence is ordinarily sufficient. A party wishing to challenge an expert’s written evidence must apply for permission to cross-examine. Where the parties agreed that interim arrangements would be decided on submissions, the resulting decision was not procedurally unfair merely because cross-examination did not occur. The court must apply the welfare principle in the Children Act 1989. An interim order may alter arrangements which overlap with the final issue where the change is necessary for the child’s welfare. Children’s wishes are important but may be outweighed by evidence that continuation of existing arrangements would cause harm. Appellate intervention in a welfare assessment, particularly concerning the weight given to relevant factors, requires a high threshold.

The parents separated in 2018 and adopted a 2:2:5:5 nesting arrangement, under which the children remained in the former family home while the parents moved in and out. In long-running Children Act proceedings, an independent social worker recommended transition towards shared care in the parents’ separate homes. At a hearing conducted on submissions in December 2021, Sir Jonathan Cohen varied the interim arrangements to a 7:7 cycle, while initially permitting only two and then three weekend nights per fortnight at the mother’s home, pending the adjourned final hearing. The father appealed, alleging procedural unfairness, judicial partiality and an erroneous welfare assessment, particularly in view of the children’s wishes. The central issue was whether the interim variation was unfair or wrong.

Appeal dismissed unanimously. The interim child arrangements order was neither procedurally unfair nor wrong.

1. Under FPR rule 22.7(1), evidence at a hearing other than the final hearing is ordinarily given in writing. Under rule 22.8(1), a party wishing to challenge written evidence by cross-examination must apply for permission. The onus lies firmly on that party.
2. The parties had agreed that the interim issue should be determined on submissions. No application was made for the independent social worker to attend for cross-examination, and no direction was sought for statements from the parents. In those circumstances, the father could not complain that the judge had acted unfairly by proceeding without oral evidence. The judge had also had the benefit of the parties’ written and oral submissions.
3. The judge was not biased or partial. His earlier scepticism about long-term nesting arrangements did not establish prejudgment. He had subsequently endorsed continuation of the arrangement on more than one occasion, and no recusal application had been made before the hearing despite opportunities to raise the issue.
4. The welfare challenge concerned the weight attached to relevant factors. Such an appeal faces a high hurdle. The judge had carefully considered the children’s wishes, but was entitled to conclude that continuing the existing arrangements without change would be harmful. The restrictions on overnight stays at the mother’s home made the variation modest, measured and proportionate.
5. A judge should exercise care before making an interim order which appears to determine a final issue. However, the statutory welfare principles in the Children Act 1989 require the judge to make an order if a particular course is necessary for the child’s welfare. Varying the interim arrangements did not prevent the final court from reverting to the previous arrangement or adopting a different division of parenting time.
6. There was no justification for adjourning the hearing to reconsider the children’s party status. Their views had been conveyed through the independent social worker and leading counsel, and there was no indication that their position had changed.

The court stressed that proceedings concerning children should be resolved as swiftly as possible and should not be extended indefinitely.

• Court of Appeal (Civil Division): Permission to appeal was granted and the order was stayed pending appeal. The appeal was dismissed in [2022] EWCA Civ 68.
• High Court of Justice, Family Division: Sir Jonathan Cohen made an interim child arrangements order after a submissions-only hearing, changing the term-time arrangements to a 7:7 cycle and permitting limited overnight stays at the mother’s home pending the final hearing.