AB v CD & Anor

On an appeal concerning a child’s transfer of care, the appellate court must not substitute its own discretion for that of the trial judge. The question is whether the decision was one the trial judge was entitled to reach on the evidence, particularly where the welfare assessment is finely balanced and fact-specific.

Welfare decisions involving children are dynamic. A transfer of residence is not necessarily final, and the court must remain open to revisiting what best serves the child as circumstances develop. Medical risks, including risks arising from stress and a child’s diabetes, must be addressed on the evidence and through practical safeguards.

The appellant mother sought permission to appeal, and a stay, following HHJ Shelton’s decision to transfer the care of the parties’ ten-and-a-half-year-old daughter from the mother to the father through a staged arrangement involving the father’s wife and paternal grandparents.

The child had type 1 diabetes, had not seen her father since 2019, and had become resistant to contact. The trial judge had found that the mother’s conduct caused significant emotional harm and prevented a relationship with the father. The appeal challenged, among other matters, the assessment of the child’s medical and emotional risks and the weight given to the evidence.

The central issue was whether the trial judge had been entitled to make the welfare decision on the evidence before him.

1. Permission and outcome. Permission to appeal was granted, but the appeal was dismissed. The appellate court could not say that HHJ Shelton was not entitled to reach the decision made.
2. Appellate restraint. The appellate judge had not heard the evidence and had not read all the material available to the trial judge. It was not appropriate to substitute his own discretion for that of the trial judge. The case was difficult and finely balanced, but that did not establish an appealable error (paras [8]-[11], [38]).
3. Medical evidence and safeguards. The evidence established that stress could cause fluctuations in the child’s blood glucose readings, but did not establish that the proposed transfer was unsafe. The father and his wife were required to have appropriate diabetes training, immediate access to the monitoring application, and to provide daily updates to social workers concerning the child’s welfare, settlement and glucose levels, for onward transmission to the mother (paras [28]-[32], [40]).
4. Dynamic welfare assessment. Decisions concerning young children, particularly transfers of residence, are dynamic. The court does not necessarily determine matters once and for all. It must keep an open mind as circumstances develop and reconsider what is best for the child if the initial arrangements do not work (paras [11], [39]).
5. The order was stayed until 3 pm on 7 August 2024 to permit the mother to renew the child’s diabetes pump and to enable her to approach the Court of Appeal. The postscript records that the Court of Appeal refused permission to appeal.

• High Court (Family Division): Appeal from HHJ Shelton. Permission to appeal was granted but the appeal was dismissed under [2024] EWHC 2956 (Fam).
• Court of Appeal: Permission to appeal from the High Court decision was refused, as recorded in the postscript.