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Home > Judgments > 2005 archive

W (A Child) [2005] EWCA Civ 1025

Application for permission to appeal a residence order. Application refused.

B4/2005/0566

Neutral Citation Number: [2005] EWCA Civ 1025

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM SOUTHEND COUNTY COURT

(HIS HONOUR JUDGE YELTON)

Royal Courts of Justice

The Strand

London

WC2A 2LL

Tuesday, 12 July 2005

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

(The Lord Woolf of Barnes)

LORD JUSTICE THORPE

LORD JUSTICE LLOYD

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IN THE MATTER OF W (A CHILD)

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(Computer Aided Transcription by

Smith Bernal, 190 Fleet Street, London EC4A 2HD

Telephone 020 7421 4040

Official Shorthand Writers to the Court)

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MISS CAROLINE GARDINER (instructed by Messrs Paul Robinson, Essex SSO 9LD) appeared on behalf of THE APPLICANT

MISS GEORGIA MITROPOULOS (instructed by Messrs Chapmans, Essex SM3 8EU) appeared on behalf of THE RESPONDENT

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J U D G M E N T

(As Approved by the Court)

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Tuesday, 12 July 2005

THE LORD CHIEF JUSTICE: Lord Justice Thorpe will give the first judgment.

LORD JUSTICE THORPE:

1. This is an application for permission to appeal against an order made by His Honour Judge Yelton on 1 March 2005. The case before him concerned a little girl named Sophie, born on 2 April 2003. Her parents had met in the summer of 2002. They are in their thirties. The father is English; the mother is Chinese. They married on 12 December 2002 and established a matrimonial home in Westcliff on Sea. Sadly, the marriage did not endure and by the end of 2004 it had broken down. The father applied for an interim residence order. The mother countered with an application for a residence order and for injunctions under the Family Law Act 1996.

2. The case came before Judge Yelton very quickly. On 10 February 2005 he had it before him and he confirmed interim arrangements for Sophie pending a final hearing which he fixed for 1 March. He had the opportunity so to do because a case that had been listed for that day had settled, creating a gap in the list.

3. The care arrangements for Sophie following her birth were conventional. She was cared for by her mother who had breast fed her for the first six months of her life. Then the mother resumed her part time work as a hairdresser from Thursday to Saturday each week.

4. The arrangement within the family to cover the mother's work absence was that Sophie should live with her paternal grandparents on Canvey Island from Wednesday night onwards. The father was working full time in Basildon as a security guard. These arrangements were approved by the judge on 10 February as a stop gap for the few weeks prior to trial.

5. In his proposals to the judge the father said that he would return to his parents on Canvey Island, giving up the matrimonial home in Westcliff on Sea. His proposal was that Sophie should live there with the three of them, providing the link between that home and the mother's home. The mother's proposal was that she should be close to her large Chinese family in the Wimbledon area and that Sophie should go to a nursery during the days of her part time work, and that Sophie should spent alternative weekends with her father and his parents.

6. That was the basic choice that the judge had to make. In approaching it he made important findings in paragraphs 9, 11 and 12 of his judgment. In paragraph 9 he noted the father's proposal that he should move back to his parents on Canvey Island. But in paragraph 11 he continued that the father's proposal inevitably involved his parents, and particularly his mother, taking the majority of the care of Sophie. The judge recorded that the grandmother had said in answer to a direct question that, yes, indeed she would herself be the primary carer for the child. He noted that the present arrangement was for the father to go to his parents' home when he finished work at 5pm to play with Sophie and help put her to bed, but then to go back to his own flat in Westcliff.

7. From there the judge moved, legitimately in my judgment, to analyse the case as being one in which in reality it was not a joint application, but an application for the grandmother to be the primary carer. Accordingly, he had to direct himself by reference to authority, and particularly the case of KD in the House of Lords, that if the dispute is between a parent on the one hand and someone who is not a parent, even a grandparent, the question is not: can A provide a better home than B? The question is: are the circumstances so exceptional that the welfare of this child is best promoted by him or her being looked after by someone who is not his or her parent. Applying that test the judge proceeded to the welfare checklist and came to the conclusion that the mother was the more capable parent and that, having considered the range of powers open to him, the right order was to grant the mother's residence order.

8. The skeleton argument prepared by Miss Gardiner, which moved Wall LJ to order an oral hearing on notice, has two primary complaints. The first is that the judge failed to take advantage of the opportunity of an investigation of the family circumstances by a CAFCASS officer. That submission does not, in my judgment, run in this case for the very plain reason that the judge had control of the case management. The opportunity to urge a CAFCASS officer's report was at the directions hearing on 10 February. If there were an unreasonable refusal, that was the moment in which to apply to this court. In modern times there is an increasing emphasis on the support role of the CAFCASS service, the penultimate "S" in the title. The policy of government is to emphasise the need to reduce the time of experienced officers in investigation and report writing, to make them more available for supporting orders that emerge from final hearings. It seems to me that the judge exercised his discretion in a way that is not open to criticism in proceeding to a final hearing on 1 March without a CAFCASS report.

9. The second primary criticism advanced by Miss Gardiner is that the judge misdirected himself in regarding this as a contest between mother and grandmother; that it was really a contest between both parents. She adds that the judge should have regarded the possibility of a shared residence order and should have invited her submissions on that possibility.

10. I have already drawn attention to paragraphs 9, 11 and 12 of the judgment which answer the submission in part. The judge reached his conclusion in relation to what was intended within the family on the basis of his observations of the adults in the case and his clear conclusion that the primary carer, both as a matter of practice and as a matter of personality, would be the grandmother. Those sort of assessments are simply not open to challenge in this court.

10. As to the suggestion that the judge should more specifically have considered a shared residence order, it was something that he was entitled to deal with, inviting submissions only from the mother. In my judgment he was perfectly right to say in relation to this case, as he did in paragraph 13, that the division of Sophie's time, 40 per cent to mother, 60 per cent to father and his parents "is not in the long term a productive route down which to go because of the confusion that will inevitably be involved with a child who will not know where her primary home is".

11. For all those reasons I would refuse the application for permission.

12. LORD JUSTICE LLOYD: I agree.

13. THE LORD CHIEF JUSTICE: I also agree.

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