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Home > Judgments > 2009 archive

R (A Child) [2009] EWCA Civ 445

Appeal by mother against a residence order in favour of the father where the child wished to return to his mother and the CAFCASS officer recommended the same. Appeal allowed on a majority, Ward LJ dissenting.

The couple had a relationship of about 3 years and had separated in early 2001 when the child was nearly two. The father remarried and had another child while the mother suffered from drink problems brought on by the suicide of a good friend though their son continued to live with her. In 2008 the mother approached the father for help as she felt she could not cope and it was agreed that the son should live with the father given the mother’s problems: the father therefore applied for residence. A CAFCASS report concluded that the child should return to live with mother but the judge made the residence order despite an application for an adjournment by the father because his solicitors had changed following a Law Society intervention. At the hearing the judge also asked the mother several questions.

In this appeal, counsel for the mother argued that the judge i) had lost impartiality in questioning the mother; ii) erred in his treatment of the child’s wishes and iii) had been wrong to reject the CAFCASS recommendation. Ward LJ giving the first judgment and setting out the facts concludes that the judge i) had not put any pressure on the mother with his questioning; ii) had properly considered the wishes of the child and had not exceed his discretion in going against those wishes and iii) was fully entitled not to adjourn so as to have a CAFCASS officer present. Both Rix LJ and Moore-Bick LJ agreed on the first point but disagreed on ground 2 & 3 primarily because the child was now approaching an age when his views should weigh heavily on the outcome and the judge had not sufficiently reasoned why he rejected the CAFCASS recommendation, especially as he had not heard her in court.

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Neutral Citation Number: [2009] EWCA Civ 445
Case No: B4/2008/2481A
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WORCESTER COUNTY COURT
HHJ HOOPER QC
WR08P00157
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 22 May 2009
Before :

LORD JUSTICE WARD
LORD JUSTICE RIX
and
LORD JUSTICE MOORE-BICK
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Between:

 R (A Child) 

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Mr Paul Hepher (instructed by Brownings) for the appellant
Ms Nina Bache (instructed by Greens) for the respondent

Hearing date: 29th April 2009
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Judgment
 
Lord Justice Ward:
1. The invidious task facing HHJ Hooper Q.C. sitting in the Worcester County Court on 6th October 2008 was to decide with which of two good parents a young boy was to reside.  He preferred the father and now the mother appeals to us to reverse his decision or at least to send the matter back to the county court for re-hearing. 

2. This couple were in a relationship for about 3 years.  They separated early in 2001 when their son, L, who was born on 28th February 1999, was about 2 years old.  L continued to live with his mother after the separation. 

3. In many respects mother has not had a happy time since that parting of the ways.  A very good friend committed suicide in 2005.  A three year relationship with another man ended distressingly.  Unfortunately all of this took a toll on the mother’s wellbeing.  She took to drink to ease the stress and unhappiness.  As the CAFCASS officer Dr Mary Cochrane reported on 15th August 2008:

“23.  [Mother] accepts that she went through a phase of binge drinking to help her manage stress but she denies this placed L at risk of harm though she accepts that he did not like to see her the worse for drink.  She agrees that the tragic death of her friend in 2005 resulted in her starting to drink and it continued periodically thereafter when she fell under stress.  [Mother] says she stopped drinking in April this year and she has not had any alcohol for the last four months.  She is willing to have a hair strand test or any other test the court might think appropriate.”

4. Father on the other hand has remarried and he and his wife C have a young son now about 2 years old. 

5. The pleasing feature of this case is the amicable relationship that mother and father have maintained since their separation.  L continued to live with his mother in Redditch but had generous staying contact with his father in Birmingham.  This gave L a good start to life and he was undoubtedly making good progress at his primary school in Redditch. 

6. Things changed in March 2008.  The mother was “feeling physically unwell and mentally drained”.  She was diagnosed with low folate levels which can cause exhaustion.  Unbeknown to her she was pregnant with a baby to be born in December.  Alas, she was binge drinking again.  As she acknowledged, she could not cope.  She did what a good mother would do: she turned to the father for help and asked him to take care of L. 

7. For reasons I shall explain later, it is in my judgment of considerable importance in this case to know the basis upon which that change took place.  Was it, as the mother contended, a temporary, short-term respite, or was it, as father contends, a longer term arrangement?  The judge ruled against the mother.  He found the facts as follows:

“3.  …   L had always lived with mother until March of this year when the following circumstances arose.  It is clear to me that mother has had the misfortune to have some downs as well as ups in her life.  In March of this year, on, precisely the evening of 3rd March, she telephoned father and asked him whether L could come and stay with him because she was not feeling well and did not feel up to keeping him with her at that time. 

4.  I find that she asked if L could go to stay with the applicant and, as she now is, his wife C …  Nothing was discussed in that conversation about duration.  What was discussed was that she was not feeling strong, mentally and physically.  I find that she made that clear.  This caused in father’s mind echoes of difficulties he knew she had experienced in the past, including, it has to be said, with drink, and he readily agreed that L should stay with him and C and their young son. 

5.  He did indeed go to them.  Mr and Mrs R. heard nothing from mother until Friday when Mr R, surely commendably in L’s welfare interest, took the initiative, I find, of telephoning mother to ask how long she was expecting L to stay with them.

6.  I just go back to the call on Monday 3rd March.  She had actually used the words that she “couldn’t cope” and father went to collect him.  At that stage, Monday, 3rd March, she did not say anything about it being permanent.  Father candidly says today that he agrees that mother did not at that stage say anything which suggested that she believed it might be permanent.

7.  So on to Friday, he rang and it was agreed they would discuss matters on the Sunday, because what father proposed in that conversation on the Friday was that in all the circumstances, including what he knew about mother’s sometimes troubled background, he suggested that L might come to live with him and his wife, C, and that she (mother) think about this.

8.  On Sunday, 7th March, mother telephoned father at about 2.30 pm and said that she believed that L would be better cared for by him.  It was agreed that there should be a discussion between them for which she was to go over to their house on the evening of Wednesday, 12th March, which I find she did.  I accept father’s evidence that Mary Cochrane, Child and Family Court Adviser, in paragraph 33 of her report (which is an initial analysis and recommendations report prepared for a directions hearing in this case on 20th August) has misunderstood what father had said to her in that I find that father did not say he had protested to mother that he and C were not respite parents or something of that kind as Mrs Cochrane relates.  I do find that there was a discussion between father, mother and C involving L at father and C’s home on the evening of 12th March. 

9.  I find it was clearly agreed in the course of that discussion that L should go to live with father for the foreseeable future.  Of course nothing was discussed about duration but it was an effective change of residence in every ordinary meaning of the word of the term “residence” including the legal term of which parent has the day-to-day, night-to-night responsibility of care for the child.  It was undoubtedly an emotional discussion.  It lasted about half to three quarters of an hour.  It was discussed that L would have to move schools.  In particular it was discussed that the Rs were thinking of moving to Hall Green, and that therefore it might be a good idea for a school at Hall Green to be considered as well as schools nearer them in Longbridge where they then lived.

10.  In any event, mother left that evening with, I find, the clear understanding, even if she cannot recall it now, that the duration of L’s residence with Mr and Mrs R was at least likely to be long enough to justify the move of schools.  This I find is an important feature of the discussion.  It seems to me that what matters in a change of residence, such as was then proposed, is determined by the need for a school.  If a school move was being discussed, then it suggests itself to me beyond any shadow of a doubt that the duration of the stay was expected to be at least long enough to justify and require a change of school.  It was agreed by all of them that it would be better if L did go to live with the Rs, having regard to the mother’s past, and it appears, current difficulties.  She readily, if sadly, agreed to that.

I have added the emphasis.  There is no appeal against those essential findings of fact. 

8. On 20th March 2008 father began these proceedings by seeking orders for residence in respect of L.  There was a directions hearing on notice to mother on 16th April at which the mother stated that she had agreed, or was agreeable to, L remaining with father until August.  At that hearing contact was ordered and a CAFCASS report on the issue of residence was directed to be prepared and filed.  Dr Mary Cochrane, who is based in Birmingham, was appointed to report.  She held separate office interviews with each of the parents, met L at her office when he was accompanied by both his parents, but then left alone to speak to Dr Cochrane.  She visited L in his father’s home and then in his mother’s home.  So it was a thorough investigation.  She reported on 15th August 2008 recommending:

51.  On balance, I think L should return to live with his mother.”

9. There was a further directions hearing on 20th August 2008.  Neither party sought a direction that the CAFCASS officer attend the final hearing which was then to be fixed. 

10. When the hearing before Judge Hooper commenced the father applied for an adjournment because the solicitors who had been representing him had been suspended from practice and the Law Society had put in other solicitors to take over their practice but the new solicitors had not had the time to consider father’s case at all.  Mrs Seddon, who then appeared for the mother, opposed that application and this exchange between counsel and the judge is recorded on the transcript before us:

“Judge Hooper:  Very well.  So on the basis that you say that father has been adequately representing himself to date …

Mrs Seddon:  He has.

Judge Hooper:  … and having regard to the ‘no delay’ principle, you say the matter should proceed today?

Mrs Seddon:  We do.  I say it again, that the mother has in fact got a place reserved at the school that the child would be at if he hadn’t moved from mother, in other words where all his friends have gone …  That place is only open until 24th October, which is in fact half term.  If that place isn’t taken up by then it will be withdrawn.  I can hand the letter forward to confirm that (handed to the judge).

Judge Hooper:  Yes, very well.  I will keep that with these. 

Mrs Seddon:  I ought to say that, from my client’s instructions, the little boy knows this is going on.  He is quite disturbed about it and felt that it was going to be dealt with today and clearly wants it dealt with today.  Of course my client is also heavily pregnant.  Her new baby is due on 1st December – of course they arrive when they want to – any adjournment could create a lot of difficulties for my client if the birth came on early or whatever, her health may be affected by it.  So I invite the court to proceed.”

11. Having ascertained from the clerk that it would be after Christmas before the matter could be re-listed, the judge acceded to that request.  In a short judgment he relied upon the “no delay” principle and the urgency given the limited availability of a place for L at his old school.

12. So the hearing proceeded.  The father gave evidence and was cross-examined until the short adjournment.  At 2.15 mother gave her evidence and, as I shall explain, the judge asked her a number of questions.  Counsel made her final submissions to the judge.  The father said little.  The judge gave a comparatively short ex tempore judgment and the case was over in the day that was allocated for it. 

13. Mr Paul Hepher now appears for the mother and cogently but by no means less compellingly for that reason, pursues three grounds of appeal:

(1)  The judge unfairly entered into the arena “as the respondent’s advocate” in cross-examining the mother and in so doing he lost his independence and impartiality so that the hearing was unfair to the mother.
(2)  The judge erred in his treatment of the wishes and feelings of the child. 
(3)  The judge was wrong in law to reject the recommendation of the CAFCASS officer that L should return to live with his mother without hearing evidence from the reporting officer. 

The first issue: the judge’s questioning of the mother
14. The judge asked questions which are recorded on four pages of the transcript compared with nearly fifteen pages taken to record the cross-examination of the father.  Those questions began in this way:

“Judge Hooper:  Mr R, the way I propose to proceed with this, as is my usual – not, of course, invariable practice (no practice should be invariable in cases about the welfare of children) is to first of all [ask] [mother] some questions myself based on what I understand to be the issues arising, so as to relieve you of the burden of having to put questions directly to her.  However, when I have finished I shall invite you to tell me whether there are any other matters that you wish to challenge her on, the point being that I may say, well, since I don’t have to decide everything that parents in cases like this are likely to want to raise, it may not actually be necessary to investigate such a matter as you may have, quite understandably, in mind.”

15. Having asked his questions, the judge then said:

“Very well.  We have reached the stage, Mr R, where I say two things.  First of all, please bear in mind that I don’t have to decide everything that has been mentioned or explored today at the hearing, only what I decide is necessary on your application for residence of L.  That excludes more than it includes as we all know, because it depends on issues to do with his welfare.  Given that the only purpose of cross-examination is to undermine the other side’s case or to advance your own is there anything else you would want me to put to [mother] in support of your case as to L’s welfare. 

Mr R:  No, there isn’t, no.”

Mrs Seddon proceeded to re-examine her client. 

16. As more and more parties are forced to appear in person, so judges are frequently required delicately to maintain a level balance to the playing field.  Give the litigant in person no help and he will complain: take too active a role and the other side complains.  There is no easy way out of that dilemma.  It must be left to the individual good sense of the judge to decide how and when to intervene, the circumstances varying infinitely.  Here I am totally satisfied that the judge preserved his neutrality.  He was helpful but not hostile.  The questions were asked courteously and invariably couched in the language of leading evidence-in-chief rather than of cross-examination, wholly consistent with the non-adversarial atmosphere judges strive to achieve in family proceedings.  If ever a point came when the judge was acting both “as father’s advocate” and as judge in demanding answers to his own questions, it came at this point:

“Q.  Well, let’s just take it in stages.  L remained at Mr and Mrs R’s house after the evening discussion that you have discussed.

A.  Yes.

Q.  Do you agree or disagree that the outcome of the discussion was that L should remain permanently with Mr and Mrs R?

A.  On their side, but not on mine.

Q.  Miss H, may I beg you to try to answer the question.  Do you agree or disagree that the outcome of the discussion was that L should remain permanently at their house.

A.  Disagree.

Q.  Disagree.  That’s very helpful.  Thank you very much.  I’m just going to note that, you see, so that I can get that down.  ‘Disagree outcome was L should remain’.  What do you say the outcome of the discussion was?

A.  There wasn’t really any outcome …”

I do not see in that exchange any sign of the judge putting pressure, still less undue pressure, on the mother.  The question needed to be answered.  The judge pressed for the answer in a thoroughly courteous and neutral way.  There is not the slightest chance that a fair-minded and informed observer sitting in the back of Judge Hooper’s court, would have concluded, having considered the judge’s conduct of that examination, that there was any possibility that the judge was biased.  In my judgment there is no substance at all in the complaint that this was an unfair hearing and I reject that ground of appeal.

The second issue: did the judge err in his treatment of the child’s wishes and feelings?
17. L’s wishes and feelings were investigated by the Family Court Adviser. Dealing with “The child’s story so far and [his] views”, she reported;

“4.  L impressed me as a delightful young boy and a credit to his parents.  …  He said he was upset when he was told he was not going back to live with his mum and she was too.  ….
6.  L told me he missed his mum “a lot” …
8.  L was quite up-beat about living with his father and C.  …
9.  He went on to say he got on alright with C and that she “looks after me and cooks great lasagne.”  … 
10.  I asked L how many marks out of 10 he would give to a decision that things should stay the way they are now.  He said 9/10.  I asked him what score would be if it were the other way round, i.e. living with mother and seeing father on alternate weekends.  L allocated that 10/10. 
11.  I visited L at his father’s three bedroomed house and was impressed by how warm and welcoming it was.  … 
14.  [Mother’s] home too is comfortable and bright, clean and welcoming.

30.  Mr R considers that L should live with him and his wife as they can provide a more secure, stable home life for him than can [mother].  Mr R thinks that L has settled well with his family and that he is doing well in school (this seems to be confirmed by his excellent end of term report).”

18. Dr Cochrane then discussed the “Risk issues and safety planning” which centred mainly on mother’s drinking.  She next reported on the “Parties’ position on key issues” and proffered her “Analysis of key issues” which she identified to be whether or not mother’s drinking was sufficient to warrant 9 year old L moving from his home with his mother where he has lived since he was 2 years old in order to live with his father where he has been since March 2008.  Her view was:

“43.  For a time [mother] was clearly drinking heavily and L was aware of this and did not like it.  I am sure he did not.  It is bewildering and upsetting for a child to see a parent who is supposed to be competent and in control in a state of incompetence, particularly if you are on your own with that parent.  Clearly there are safety implications …

46.  She has argued, with some justification, that her problems were not so severe or of such longstanding as to impinge on her ability to care for L.” 

47.  [This is an important paragraph]  “Undoubtedly, Mr and Mrs R have provided L with a caring and comfortable home over the past five months and he seems to have settled well there.  I sense however, having spent time with L in both homes, that he is more relaxed with his mother.  This is no criticism of his father but as perceptive L himself said, “I know my mum better than my dad because I always lived with her.”  One recalls the scores L gave to the two options (9/10 to living with dad and 10/10 to living with mum).  I think L would like to return to the pattern of his former life.  I sense also that he feels a great loyalty and devotion to his mother.  He wants to be there when she has the baby.  He wants to be there to reassure himself that she is alright.  He wants to be there with her because she lives on her own.  While L is of course too young to take on any responsibility for his mother I think that sense of him wanting to be there for her and to reassure himself that she is still part of that close family unit, is an important one for L.”

19. Then she made her recommendations as follows:

“51.  On balance, I think L should return to live with his mother.  This is not based on any criticism of the care he has been given by his father and step-mother.  I think they have done a splendid job and whatever the outcome I hope they will retain a very active role in L’s life.  L needs his father’s input and his father can and does provide a good, sound role model for L.  As indicated by L’s scoring, he loves his father and family very much.

52.  I think L also loves his mother very deeply because he has lived with her all his life up until 6 months ago.  I think they have a very close bond.  I think L has missed his mother more than he felt able to let on to his father.  He is a sensitive child and I think he is desperate not to hurt either of his parents.  …

54.  I am not convinced, on the information I have at present, that the level of risk or distress to which L has been exposed so far is sufficient to permanently remove from his mother’s care ….

57.  Finally, I would like to say that both parents, while frustrated with aspects of the other’s behaviour, were keen to say that essentially they considered the other to be a good parent.  They also emphasised that despite their differences, in general, they have been able over the years, to negotiate civilly and politely with one another on behalf of L.  Whatever the outcome of this case it would be tragic for L if that were not to continue.  He has and will continue to benefit from being able to move easily between each of his parents’ homes.” 

I say “amen” to that last observation.

20. How did the judge deal with this?  He said:

“14.  So we come forward in time to the CAFCASS reports.  The CAFCASS report makes the recommendation that L should return live with mother.  I am not going to recite all of it but Mrs Seddon has very properly urged me to [give] careful consideration to, in particular, paragraphs 46 and 47 and the recommendations in paragraph 51 onwards.  What I feel I must do is drill into the underlying rationale of this report, which is not written in the conventional form of setting out the welfare checklist principles and making observations against them but is more of a general narrative. 

15.  True it undoubtedly is that L has said he wishes to return to live with mother.  He is in a very difficult position.  I find that he does indeed love and cherish his mother.  He naturally would do so, she having been the source of his nurture for all of his nine years, together with such input as father has given, originally when resident, or as if resident but more recently through a fully established, working, amicable contact routine.  It is very difficult to judge a child’s wishes and feelings, particularly where as is so often the case, there is the added dynamic of a father’s new partner.  I grasp the nettle of whether or not there are issues adverse to L’s welfare between him and C R, and I find there are not.  I do find that L makes negative remarks about C to his mother on contacts, such as there have been, in a good and itself working routine since father commenced the proceedings, but that he does so more in order to give mother positive comfort of some negative observations about C than out of any actual reliable basis of any sort of difficulties between him and C inimical to his welfare.  It may be that, for example, being subject to ordinary domestic discipline by C is a different experience from being subject to ordinary domestic discipline by mother.  But nothing in the relationship between L and C, in my judgment, represents an issue adverse to L’s welfare.  So when it comes to wishes and feelings, therefore, of course he would naturally, by nurture as well as elements of nature, be inclined to express his wish to live with his mother.  But that to me is not the end of the matter. 

16.  I find that, as to his physical, emotional and educational needs, those are being more than adequately addressed in the regime of his life in residence with father and C.  The fact is that he was in a difficult situation before.  Although none of us would have wished to create these arrangements, the fact is that mother did find that she could not cope with looking after him for one reason or another and therefore he crossed over to live with C and his father.  The fact that he has become stable in that relationship and the residence arrangements suggests to me, in regard to the dangers inherent in any change of circumstances that there is positive disadvantage to him moving back now.  He is well settled in school and doing well.  He is in year 5 so he will not be moving until September 2011,  and I think it right he work his middle school years in the school where he has established himself since April this year.  That would presume continued residence with father.

17.  So far as his age is concerned, he is at a stage of great concern as to welfare with what decision is made.  But it seems to me that age is not of itself a determining factor such that he should be judged to go back to live with mother if the fact is that he has settled in with father and C now.  Indeed for the reasons about his settling at his new school which I have given, age considerations support him remaining living with the Rs. 

18.  There is a point about emotional needs which I have to address because mother very fairly and properly raised it.  She is expecting a baby and the e.d.d. is the very beginning of December.  She says, ‘What worries me if he doesn’t return to live with me is at the age of 9, now I’m going to have another baby, it would make a bad impact on his mental state in that he’d think it not fair that I’m looking after a baby, not him.’  It seems to me that a 9 year old and here also is an interface with the age consideration of the welfare checklist – needs to understand and manage, in a more sophisticated way merely than being perceived to be a requirement to move back to mother, the arrival of a nine year younger baby for mother.  It seems to me that in the circumstances that is, so far from not undermining his likely emotional stability, something which he would no less well judge and manage from the security of his, by now, 7 month’s established life with C and his father and his half-brother L in their home.  He would continue to have contact and I shall so order it.  But in the circumstances it seems to me that it is entirely proper that he enjoy and benefit from the arrival of the new baby from the stability of an established household and a school regime based around that household, than [that] there be any consideration of  his needing to be back with mother in the circumstances of the arrival of a new baby if he is not in that situation now. 

19.  Who knows what may have been the circumstances had mother not found herself unable to cope with him in March?  That is a hypothetical question which it is fruitless to investigate.  He plainly will be at no risk of harm as such were he to either remain with father or return to mother, and I do not find that a helpful consideration.  It adds nothing to the other considerations of the welfare checklist which I have addressed.

20.  Paragraph 57 of the CAFCASS report I do accept, as Mrs Seddon asks me to do as supporting what I have to say would probably be my judgment in any event, having had the opportunity to see an observe both parents today, that both parents are entirely capable of looking after him in residence and that each recognises that. 

21.  In all the circumstances I conclude, with, I have to say just so that it is properly understood no doubt at all, that the overall balance of L’s welfare interests requires him, since is there and has been since March and for all the reasons I have given, remain now in residence with father.  …”

21. Mr Hepher’s attack on the judge’s approach can be summarised as follows:

(1)  the judge placed insufficient weight on L’s wishes especially since he is at an age when those wishes should carry considerable weight.  He erred in failing “to listen” to him. 
(2)  He erred by impliedly rejecting the CAFCASS officer’s clear analysis of L’s wishes by taking a different view from her, namely that one could not really judge what L wanted. 
(3)  He relied on the endorsement by this Court of the psychiatric opinion proffered to the Children Act Sub-committee of the Advisory Board on Family Law that:

“… while [the child’s wishes] need to be assessed within the whole context of such wishes, the older the child the more seriously they should be viewed and the more insulting and discrediting to the child to have them ignored.  As a rough guide we should see these as needing to be taken account of at any stage; above 10 we see these as carrying considerable weight with 6-10 as an intermediate stage and at under 6 as often indistinguishable in many ways from the wishes of the main carer (assuming normal development)”: see Re: L (Contact: Domestic Violence etc) [2002] 2 F.L.R 224, 340.  

He stressed that the child was 9 ½ years old at the time he met with the CAFCASS officer.
(4)  He also relies on the advice of Baroness Hale in Re: D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 A.C. 619:

“[57]  …  But there is now a growing understanding of the importance of listening to the children involved in children’s cases.  It is the child, more than anyone else who will have to live with what the court decides.  …”

22. Miss Bache, who was instructed at the eleventh hour by the father, submits that the judge did not misunderstand the case at all; the weight he gave to the child’s wishes was a matter for him; it was important to distinguish between the child saying, “I don’t want this” and his saying, “I prefer that”.  Moreover the judge correctly concluded that L’s wishes were not the end of the matter.

Discussion
23. The judgment must be read in the context of the hearing in which it was delivered.  In a case involving an exercise of discretion where the matter is finely balanced, we must always remember that on another day or with another judge the outcome could well have been very different.  Thus it is salutary to remind ourselves of the speech of Lord Hoffmann in Piglowska v Piglowski [1999] 1 W.L.R. 1360, 1372:

“In G v G (Minors: Custody Appeal) [1985] 1 W.L.R. 647, 651-2, this House, in the speech of Lord Fraser of Tullybelton, approved the following statement of principle by Asquith L.J. in Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All E.R. 343, 345, which concerned an order for maintenance for a divorced wife:
‘It is, of course, not enough for the wife to establish that this court might or would, have made a different order.  We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable.  It is only when the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.’
This passage has been cited and approved many times but some of its implications need to be explained.  First, the appellate court must bear in mind the advantage which the first instance judge had in seeing the parties and the other witnesses.  This is well understood on questions of credibility and findings of primary fact.  But it goes further than that.  It applies also the judge’s evaluation of those facts.  If I may quote what I said in Biogen Inc. v Medeva Plc [1997] R.P.C. 1, 45:

‘The need for appellate caution in reversing the trial judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy.  It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence.  His express findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may an important part in the judge’s overall evaluation.’

The second point follows from the first.  The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed.  This is particularly true of an unreserved judgment … but also of a reserved judgment …  These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account.  This is particularly true when the matters in question are so well known as those specified in section 25(2).”  [I interpolate to say the same applies to the checklist set out in section 1 of the Children Act 1989.]  “An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself.”

24. If I have to add to the litany, I remind myself of what Lord Fraser said in G v G at p. 651:

“The jurisdiction in such cases [cases concerning the welfare of children] is one of great difficulty, as every judge who has had to exercise it must be aware.  The main reason is that in most of these cases there is no right answer.  All practical answers are to some extent unsatisfactory and therefore to some extent wrong and the best that can be done is to find an answer that is reasonably satisfactory.  It is comparatively seldom that the Court of Appeal, even if it would itself have a preferred a different answer, can say that the judge’s decision was wrong and unless it can say so, it will leave his decision undisturbed.”

25. Bearing those strictures in mind, I look at the way the case was presented to the judge.  In her short closing submission covering just over two pages of the transcript, she read paragraph 47 of the CAFCASS report to the judge and submitted:

“… that is a very important paragraph.  It underlines the very close relationship that this child has with his mother and that relationship, in my respectful submission is what the child wants to resume.  He is 9 ½.  He can express his wishes and his views and indeed, in my respectful submission, those wishes and views are important and extremely  important.  He is of an age where those views should be taken account of by the court unless it can be show that he would suffer as a result of it there is no evidence that he will do.  Indeed, the recommendation of Mary Cochrane is that he should go and live with his mother.”

She read paragraph 52 of the CAFCASS report and submitted that too was a very important paragraph because:

“this little boy wants to go back where he feels comfortable and safe, and I invite the court to say that should happen.”

She reminded the judge of the boy’s marking his father and mother 9/10 and 10/10 respectively and she concluded:

“Indeed, he may well, if he doesn’t go back, feel it is very unfair if those are his wishes, to see his mother with another child who she is able to bring up on her own, and to feel he has been excluded from the company of his mother full time, as he had before.  That would be entirely wrong for this child, who would not understand fully why having told the CAFCASS officer that’s what he wants to do.  He should have his views listened to.  It would be wrong and unfair for him not to have that happen.”

The judgment followed immediately.

26. With those words ringing in his head, it seems to me impossible successfully to submit (and no attempt was made to submit) that the judge failed to have regard to this important checklist factor, namely, “the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding).”  He made it plain in the first and penultimate sentence of paragraph 15 that it was “undoubtedly” true that L had said he wished to return to live with his mother and that he would “naturally, by nurture as well as elements of nature, be inclined to express his wish to live with his mother.”  He knew that from the CAFCASS report and observed in paragraph 14 of his judgment that Mrs Seddon had very properly urged him to give careful consideration to paragraphs 46 and 47 and the recommendations in paragraph 51 onwards.  So he was not unmindful of the contents of the CAFCASS report.  What the judge knew about L from the CAFCASS report was that he was “a delightful young boy”; he had had an “excellent end of term report”; he was “perceptive” and “sensitive”; he was “too young to take on any responsibility for his mother” but “but the sense of him wanting to be there for her [when she had the baby] and to reassure himself that he was still part of that close family unit, is an important one for L.”

27. The challenge boils down, therefore, to a challenge to the weight he gave to this factor.  The submission was that it was of such weight that it tipped the balance.  The judge disagreed.  In his view the boy’s wishes were not the end of the matter.  He was in my judgment correct to treat the wishes as but one of the several checklist factors to which he had to have regard and he properly went through the checklist.  I do not see that he can be criticised.  I do not see how this Court can say that he was plainly wrong not to have concluded that the boy’s wishes tipped the balance in this case.   

28. Mr Hepher’s second argument stems from the judge saying that “It is very difficult to judge a child’s wishes and feelings, particularly where as is so often the case, there is the added dynamic of a father’s new partner.”  I do not read that part of his judgment as impliedly rejecting the CAFCASS officer’s clear views of what the boy wanted.  The judge clearly knew what the boy wanted and in this passage of his judgment he is dealing with – “I grasp the nettle” – the issue of whether or not there was a poor relationship between L and C which would account for his preference for his mother and whether that tension between them (if it existed) would justify his move back to mother.  He was right to grasp the nettle because the mother had given evidence of L “struggling really to adapt to Mrs R’s style of parenting” and to not being “comfortable with her”. His conclusion was that there was nothing in the relationship between L and his stepmother which represented an issue adverse to L’s welfare.  It seems to me to follow that the judge accepted the assessment in paragraph 8 of the CAFCASS report that L was “quite up-beat about living with his father and C” but that nonetheless he would prefer to live with his mother. 

29. As for Mr Hepher’s third argument, we must of course, as Baroness Hale has reminded us, listen to children.  But it is also necessary to remember the sentences before and after the passage in Lady Hale’s speech which was  relied upon by Mr Hepher.  She said this:

“As any parent who has ever asked a child what he wants for tea knows, there is a large difference between taking account of a child's views and doing what he wants.  …  Just as the adults may have to do what the court decides whether they like it or not, so may the child.”

30. Having concluded that the boy’s wishes were not the end of the matter, the judge, unlike the CAFCASS officer, went on to have regard to each of the other checklist factors.  The first was “his physical, emotional and educational needs”.  He contrasted the fact that they were being more than adequately addressed in the regime of his life in residence with father and C whereas he had been “in a difficult situation” with his mother, a reference to, and a kindly reference to, her drinking.  In looking at “the likely effect on him of any chance in his circumstances”, he found that “having crossed over to live with C and his father”, he had become stable in that relationship and concluded, as he was entitled to, that there would be “positive disadvantage to him moving back now” because he is “well settled in school and doing well”. 

31. Then the judge looked at “his age, sex, background and any characteristics of his which the court considered relevant” and concluded that age was not a determining factor in the sense, as I understand his judgment, that he was not so young that he needed a mother’s special care nor so old that he would be better off with his father.  If anything, as the judge concluded, he was at that stage in his education that age supported his remaining with his father. 

32. Then in paragraph 18 he returned to the question of the boy’s “emotional needs”.   That was something he had to address because mother “very fairly and properly raised it”.  In her evidence she had said with reference to her having another baby in December:

“If L is to live with his father, if the outcome is that he has to live with his father, I think it would have quite a bad impact on L’s mental state, thinking that “my mummy can look after my baby brother but not me”.  I really believe that because I would probably feel that way. 

Q.  So you think he would wonder …

A.  I think any child would, yeah.

Q.  …. How you could look after one child but not him?

A.  It would be taken as not being fair as well by him, he’d probably think it’s not fair as well.”

This is, therefore, a different point from his expressed wish to be with his mother at that time.  In paragraph 47 of her report the CAFCASS officer seems to me to have been dealing with the matter in terms of his wanting to be there when she has the baby, wanting to be there for her and wanting to be there in order to reassure himself he is still part of that close family unit.  Her emphasis was on his wishes.  She did not use the checklist and she did not link this as the judge did to some emotional damage if he was to be denied his wish.  It was open to the judge to analyse it in that way.  His conclusion in paragraph 18 was that L’s likely emotional stability would not be undermined remaining with his father where he would “no less well judge and manage” the arrival of the new baby.  He considered it to be “entirely proper that he enjoy and benefit from the arrival of the new baby from the stability of an established household and school regime”.  Some criticism is made of the judge’s reference to L needing “to understand and manage, in a more sophisticated way merely than being perceived to be a requirement to move back to mother, the arrival of a nine year younger baby for mother.”  I understand the judge to be saying that he was of an age where he could articulate the wish but did not have the understanding to appreciate that he would prosper by managing this new event from the stability and security of his father’s home.  As Lord Hoffmann has said, we should resist the temptation to substitute our own discretion for that of the judge by a narrow textual analysis of his judgment. 

33. The judge concluded in paragraph 19 that there was no risk of harm were he to be either with father or with mother so that factor did not add to the other considerations of the welfare checklist which he was addressing.  He accepted that each parent was “entirely capable of looking after” L. 

34. Upon analysis the factor which weighed most heavily with the judge was the fact that he had become well settled at home and at school in his new placement and that there were disadvantages therefore to his moving back and interrupting the progress and stability he had achieved and needed as he moved through his middle schooling.  I would be concerned if the father were taking opportunistic advantage of a temporary difficulty experienced by the mother and of a temporary placement with him.  But that is not this case.  The findings of fact made by the judge and not appealed were that a de facto change of residence had taken place and it had been “clearly agreed” that L should live with his father for the foreseeable future.  The father’s application for a residence order was not, therefore, in my judgment, an attempt to take advantageous advantage over the mother but rather a permissible step to regularise an agreed change. 

35. Although the judge reached his conclusion with “no doubt at all” it was not an easy case because there were good parents, each of whom could have been entrusted with the care of the child.  That serves only to emphasise Lord Fraser’s wise words: “There is so frequently no right answer; all practical answers are to some extent unsatisfactory and to some extent wrong” but, having deliberated long and hard about it, I am not persuaded that the judge was plainly wrong for I cannot see that he failed to take some relevant factor into account, or that he took some irrelevant factor into account; and in the weight he gave to the various factors, he did not exceed the generous ambit within which reasonable disagreement is possible. 

The third issue: should the judge have called the CAFCASS officer before giving judgment?
36. Mr Hepher draws our attention to Re W (Residence) [1999] 2 F.L.R. 390, 395 where Thorpe LJ said:

“…  Authority has established clearly, since at least the decision of this Court in W v W (A Minor: Custody Appeal) [1988] 2 F.L.R. 505, 513, that judges are not entitled to depart from the recommendation of an experienced court welfare officer without at least reasoning that departure.  The more recent decision of this Court in Re A (Children: 1959 UN Declaration) [1998] 1 F.L.R. 354 emphasises the importance of the judge testing any misgivings that he may have developed from the written report of the welfare officer in the witness box.  This judge had the opportunity to voice such misgivings as he had developed during the welfare officer’s oral evidence and he did not do so.”

37. In Re A Thorpe L.J. had said at p. 356:

“But in a case in which a judge is contemplating rejecting the recommendation of a welfare officer, it seems to me to be important that he should afford the court welfare officer an opportunity to consider his misgivings or anxieties, particularly if the court welfare officer is the last to enter the witness-box having heard all the oral evidence.  Equally if there is a consideration which in his mind is of particular significance, and if that consideration has not appeared in the welfare officer’s contribution, it is important that he should discuss the direction of his thoughts so that the court welfare officer can, at least, have an opportunity of commenting upon this further consideration.”

38. In both those cases, unlike the one before us, the welfare officer had given evidence and the judge had had the opportunity, but had not taken it, of seeking to clarify the position.  For the case where the welfare officer had not been called, Mr Hepher relies upon Re CB (Access: Attendance of Court Welfare Officer) [1995] 1 F.L.R. 622.  It was quite an extreme case.  Mother was appealing the order that she afford access to her parents, the maternal grandparents of a four year old child in circumstances where the grandfather had been convicted on two counts of indecent assault on the mother and one of common assault for which he served a nine month prison sentence.  The welfare officer supported by the Social Services Department, gave strong warnings about the risks of harm when contact is afforded to a schedule 1 offender.  The judge only paid lip service to the conviction and imposed no supervision of the contact.  Purchas L.J. said this at p. 629:

“In cases where there are clear-cut recommendations and warnings such as those present in the second report, as indeed there were in the first report, in my judgment, it is wrong for a judge to proceed to form conclusions directly contrary to such recommendations without availing himself of the opportunity of receiving further assistance from the court welfare officer in the form of evidence.  It is open to the judge to adjourn the case and demand the presence of the court welfare officer.  The court welfare officer may vary his opinion in the light of the evidence or in the light of points put to him by the judge or, alternatively, he may hold his opinions.  Whichever event occurs, the judge, having availed himself of the opportunity of receiving the further evidence may then make his decision applying his own discretion.  But to apply his discretion without availing himself of that opportunity is, in my judgment, a defective exercise of discretion.”

39. It should be noted that there are several differences between that case and this.  First and foremost there were obvious risks in allowing that unsupervised contact.  There is no suggestion that L is at any risk of harm in remaining with his father.  There were “clear-cut recommendations” in that case: here the CAFCASS officer’s recommendation was that “on balance, I think L should return to live with his mother,” with emphasis added by me. 

40. Mr Hepher relies on this authority in support of a submission that if the judge is to depart from a recommendation of the welfare officer he must always call the CAFCASS officer in order to debate with him their respective views.  I cannot accept that submission for a number of reasons. 

41. First, that is not the thrust of Purchas L.J.’s judgment.  In saying, “It is open to the judge to adjourn the case …” Purchas L.J. was indicating that this was a matter of discretion and in that case “to apply his discretion without availing himself of that opportunity was a defective exercise of discretion.”

42. Secondly, it would cause havoc with the listing of family proceedings if arrangements had to be made for CAFCASS officers always to be present up to the moment before judgment is given so that judges could call the officers to clarify differences of view between them.  That is why there must be a discretion to adjourn the case.  But adjournments invariably mean delay and given the pressure of work in the family courts, often long delay before an appropriate listing can be arranged.

43. Thirdly, there is what is to my mind very persuasive authority of this Court in Re  C (Section 8 Order: Court Welfare Officer) [1995] 1 F.L.R. 617.  There the welfare officer was unable to attend and although the report reached no firm conclusion in any particular direction, the overall flavour was in favour of preserving the status quo.  An application was made by the father that the hearing should be adjourned until the welfare officer was able to attend.  That application was refused by the judge who proceeded to hear the case and ordered that the child should remain with his mother.  Hale J. (as she then was) with whose judgment Steyn L.J. agreed, said this:

“It goes almost without saying that the general principles relating to adjournment are that it is in the judge’s discretion, and this court is not going to interfere unless he was plainly wrong.  But if he can only do justice by an adjournment he clearly must do so and the non-availability of an important witness may also fall within that category.

Nevertheless, it is important to remember what is in issue in children’s cases.  It is not one of the rights of the parents, but of the upbringing of the child.  Section 1(1) of the Children Act 1989 provides that the welfare of the child is the paramount consideration.  Furthermore, s 1(2) of that Act provides:

‘In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.’

Clearly, that principle should not be permitted to prevent the proper investigation of the case, but in this particular case the next hearing date would be four months later.  The judge had to weigh the likely prejudice to C’s welfare from adjourning for so long, against the prejudice to the proper determination of what would be in his best interests in having the welfare officer there for cross-examination.  …

…  The role of the court welfare officer is to help the judge to decide what is best for the child.  It depends therefore what further assistance he might be able to give the court and what his attendance is likely to change.  In Re CB (above) there were clear recommendations and warnings of the most serious kind which the judge chose not to follow.  In this case, although the judge took the report as recommending the status quo, the report was in reality an account of the interviews that the welfare officer had with both parents, separately and together, and with C.  It reached conclusions which set out the arguments and considerations very fairly and did not make firm recommendations in any particular direction, although the tenor of consideration was, unsurprisingly in the circumstances, in favour of the status quo.

In such a case it must always be open to the judge to say that he has conducted his own evaluation of the relevant considerations and weighed them slightly differently from the impression given by the court welfare officer, whether or not the court welfare officer is there.  So he was no disabling himself from deciding the case differently, or for the father by not adjourning the case.  …

Thus the case of Re CB cannot be a hard-and-fast rule of law.  Procedural straight jackets in cases of this kind would be most undesirable, especially in the light of the balancing act which is required by the paramount consideration of the child’s welfare and the provisions as to delay in s 1(2).  Many factors will have to be taken into account in the exercise of the court’s discretion.  These will include how much further assistance the court welfare officer can give, and the extent it would be safe or proper to depart from any recommendations made.  In this case the judge was clearly entitled to reach the conclusion that he could fairly conduct an examination of what would be in C’s interest without requiring the attendance of the court welfare officer and so the appeal should, not be allowed on that ground.”

44. The reasoning there fits this case.  There was no strong recommendation.  The judge was well able to conduct his own evaluation of the relevant consideration.  The attendance by the CAFCASS officer would not have added much illumination to the arguments.  There was no exceptional feature to the case.  The mother had it plain through her objections to the father’s applications for an adjournment that she wished the matter to proceed that day not only because of the general principle that delay is invariably inimical to the welfare of the child but specifically because the place at school would be lost if the decision was not then made and L himself wanted the matter dealt with there and then. 

45. In my judgment the judge was fully entitled in all those circumstances to do his best with the evidence he had and to make his mind up in the light of the way the case was presented to him.  I cannot criticise him for failing to adjourn solely for the purpose of what was likely to be an anaemic discussion with the CAFCASS officer.

46. In so many ways this was a simple case but, as so often happens, the simple case throws up the hardest decisions.  It is a case about which two views can perfectly properly be taken as the powerful judgments of my Lords demonstrate.  That perhaps serves only to convince me it is wrong to interfere.  In the result, therefore, I remain unpersuaded by any of the grounds of appeal and for my part I would dismiss the appeal. 

Lord Justice Rix:
47. I am most grateful to Lord Justice Ward for setting out the material in this appeal. I agree with him on the first issue. For the rest, I recognise his powerful judgment, and his experience in this field, and both have caused me to reconsider my own opinion with anxiety. Nevertheless, I have concluded that this appeal should be allowed and I will try to explain why.

48. The judge, who heard both parents, but neither the child nor the Cafcass reporter, Dr Cochrane, was dealing with or found the following essential facts. The child had lived all his life, up to March 2008, with his mother, at which time he had just reached his 9th birthday. His mother lived alone. The father was married, and had a one year old son of that marriage. In March 2008 the mother, feeling that she could not cope, had asked the father to help by looking after the child. There was no suggestion at that time that there was to be a permanent transfer of residence to the father. About ten days later, however, it was agreed that the child would stay with the father for the foreseeable future, at any rate long enough to justify a change of schools to facilitate the move. About another week after that, on 20 March, the father issued court proceedings for a residence order in his favour.

49. The judge said that that application corroborated the arrangement that had been made, but if so, it is significant that the mother’s response to the father’s application was to oppose it. On 28 March at a without notice application at court for an interim residence order, the father was only willing to permit contact to the mother on a supervised basis, which suggests to me that he was concerned that the mother would seek to resume the residential care of the child. On 8 April 2008, the mother completed acknowledgment of service opposing the father’s application. The judge did not mention these matters.

50. The child had only started at his new school after the Easter holidays. The mother’s evidence was that she had a place for the child at “his new middle school” at Redditch. Therefore, at the first court hearing at which both parents participated, namely on 16 April, she agreed that the child could remain with his father until August. In her September witness statement for trial she said that that place was still open, and that all the children from the child’s primary school had gained a place at the new school and that he would like to rejoin them. At trial, the mother was able to show from a letter from that school that the place would remain open until half-term, on 24 October. The judge mentioned none of these matters. It was because she was concerned not to lose any more time in these arrangements that she opposed the father’s application to adjourn the trial, which was held on 6 October. The father wanted this adjournment to enable him to obtain legal representation.

51. The mother was expecting a baby at the beginning of December 2008. It follows that the conception, arising from a relationship which did not endure, must have been more or less coterminous with her inability to cope with looking after the child, at the beginning of March. As she said in her evidence, she was not then aware that she was in the early stages of pregnancy.

52. Dr Cochrane in her report provided a detailed picture of the circumstances affecting the mother, father and child. She referred to the mother’s binge drinking under stress, but also to her claim to have stopped drinking in April and to be willing to undergo a hair test to prove it. She referred to the father’s belief that the child had settled well in his new home and that he was doing well at school, and commented that this seemed to be confirmed by his excellent end of term report. She also said that the father acknowledged that at the meeting at which he understood the mother to agree to the child remaining with him, both mother and child were tearful and the child said he did not want to move school and leave his friends. She referred to the child as a “lively, engaging, thoughtful son” and complimented the mother on the job she had done. She said that he was more relaxed with his mother and considered that he would like to return to the pattern of his former life. She said –

“He wants to be there when she has the baby. He wants to be there to reassure himself that she is all right. He wants to be there with her because she lives on her own. While [he] is of course too young to take on any responsibility for his mother I think that sense of him wanting to be there for her and to reassure himself that he is still part of that close family unit, is an important one for [the child].”   

53. Dr Cochrane concluded with these recommendations:

“51. On balance, I think [he] should return to live with his mother. This is not based on any criticism of the care he has been given by his father and step-mother. I think they have done a splendid job and whatever the outcome I hope they will retain a very active role in [his] life. [He] needs his father’s input and his father can and does provide a good sound role model for [him]. As indicated by [his] scoring, he loves his father and family very much.

52. I think [he] also loves his mother very deeply and because he has lived with her all his life up until 6 months ago, I think they have a very close bond. I think [he] has missed his mother more than he has felt able to let on to his father. He is a sensitive child and I think he is desperate not to hurt either of his parents.”

54. The judge was in the happy, but perhaps difficult position, of being able to commend both parents (as Dr Cochrane had done). He said (at para 20 of his judgment) that “both parents are entirely capable of looking after him in residence and…each recognises that”. He also accepted Dr Cochrane’s findings, but yet he rejected her conclusions, and he did so without referring to them other than in outline (at para 14) and thereafter ignoring them. He accepted that the child said that he wanted to return to live with his mother, but appeared to downplay this finding on the basis that “he would naturally, by nurture as well as the elements of nature, be inclined to express his wish to live with his mother”, adding “But that to me is not the end of the matter”. He never referred to it again. As for the reasons that both the child had expressed, and Dr Cochrane had discerned, for him wanting to be with his mother and new baby brother, they were supported by the mother’s evidence that “he’d think it not fair that I was looking after a baby, not him”: but the judge thought that this was an insufficiently sophisticated way of looking at the matter, saying that the child needed to understand the matter “in a more sophisticated way”. The judge thought that the child could reassure himself and his mother through contact and “from the security of his, by now, seven months’ established life” with his father and step-mother.

55. I accept that the judge had a difficult decision, made none the easier by the absence of the Cafcass reporter and by the mother’s proper concern about delay. This was a situation with which he had to deal as best he could. Nevertheless, in my judgment, he has erred in more than the balancing of the weight of various check-list factors. He has erred essentially, in setting on one side the firm evidence of the child’s own wishes, and in rejecting the Cafcass reporter’s own clear recommendation, in favour of a return to residence with the mother, together with the reasons given for both. He has not done so because of any new evidence or of a reasoned challenge to the opinion of Dr Cochrane. He has simply critically discounted the child’s wishes, and essentially ignored Dr Cochrane’s recommendations and conclusions, and has done so without hearing either. The Cafcass reporter is, to a very great extent, the eyes and ears of the court, especially where the child is concerned, but the judge has not “listened” to the child, and he has ignored the reporter.

56. Why has he done so? It is because on the one hand he has discounted the wishes of the child and ignored the recommendations of the reporter, and because on the other hand he has founded himself almost entirely on his view that the child had “settled” in his new surroundings. Thus the judge repeatedly referred to this factor. At para 16 he said “He is well settled in school and doing well”. At para 17 he said “the fact is he has settled in with father and [his wife] now”. At para 18 he referred to the child’s “seven months’ established life with [the wife] and his father”. At para 21, he said “he is there and has been since March”. Because the judge regarded the child as settled (for seven months) in new home and school, he was prepared to discount the child’s wishes and Dr Cochrane’s recommendation. Fortunately, the child has a good father as well as a good mother, and he loves them both, and he is a thoughtful and sensitive boy and so has adapted well to his change of home and school. However, that success does not seem to me to be a reason to discount his expressed, and reasoned, and accepted, wish to be with his mother, or the Cafcass reporter’s recommendation that he should return to the care of his mother. In the whole of his previous life to date she had been the foundation of his successful upbringing.  

57. The importance of listening to a child once he or she has reached the age of 10 (here, the child was almost 9½ when he was seen by Dr Cochrane) has been stressed in the authorities. Thus in Re L and others (Contact: Domestic Violence) [2000] 2 FLR 334 at 340, Dame Elizabeth Butler-Sloss P sitting in this court cited with approval Contact and Domestic Violence – The Experts’ Court Report [2000] Fam Law 615 at 624 on the subject of a child’s wishes:

“…while this needs to be assessed within the whole context of such wishes, the older the child the more seriously they should be viewed and the more insulting and discrediting to the child to have them ignored. As a rough rule we would see these as needing to be taken account of at any age; above 10 we see these as carrying considerable weight with 6-10 as an intermediate stage and at under 6 as often indistinguishable in many ways from the wishes of the main carer (assuming normal development). In domestic violence, where the child has memories of that violence we would see their wishes as warranting much more weight than in situations where no real reason for the child’s resistance appears to exist.”

See also Re D (Abduction: Rights of Custody) [2006] 1 AC 619 per Baroness Hale at [57]:

“But there is now a growing understanding of the importance of listening to the children involved in children’s cases. It is the child, more than anyone else who will have to live with what the court decides.”

58. I respectfully conclude that the judge has erred in not giving any real effect to the child’s wishes expressed in this case. He has referred to them, accepted them, but thereafter essentially ignored them. He has attempted to reason against, and reject, the child’s (partial) rationalisation of them. He has in effect wholly discounted them. And yet, the child was a mature and thoughtful child close to the age of 10, who expressed his wishes rationally and, in my judgment, with considerable emotional understanding. Moreover, those wishes, in part natural given his love for his mother and his successful upbringing to date – and therefore to be given all the more attention rather than discounted – were well supported by the still more mature understanding of Dr Cochrane and the mother that the time of the birth of his new half-sibling was not a good time at which to break up his residence with his mother. I do not understand why these well-evidenced concerns were overborne by a call for greater sophistication: in reality this was little more than a way to reinforce the judge’s conclusion that he would not disturb the boy’s “settled” status.
59. Similarly, I consider that the judge has erred in rejecting Dr Cochrane’s conclusions without hearing Dr Cochrane for himself. It is widely recognised in the authorities that this should not happen if it can be avoided. Thus in Re CB (Access: Attendance of Court Welfare Officer) [1995] 1 FLR 622 at 629 (CA), Purchas LJ said –

“In cases where there are clear-cut recommendations and warnings such as those present in the second report, as indeed there were in the first report, in my judgment, it is wrong for a judge to proceed to form conclusions directly contrary to such recommendations without availing himself of the opportunity of receiving further assistance from the court welfare officer in the form of evidence. It is open to the judge to adjourn the case and demand the presence of the court welfare officer. The court welfare officer may vary his opinion in the light of the evidence or in the light of points put to him by the judge or, alternatively, he may hold his opinions. Whichever event occurs, the judge, having availed himself of the opportunity of receiving the further evidence, may then make his decision applying his own discretion. But to apply his discretion without availing himself of that opportunity is, in my judgment, a defective exercise of discretion.”

60. In Re C (Section 8 Order: Court Welfare Officer) [1995] 1 FLR 617 (CA), the judge upheld the status quo (residence with the mother) in accordance with (and not contrary to) the slight preference of the court welfare officer, but the complaint of the father was that he should not have done so without adjourning to permit the officer to attend. However, the judge had been able to see the teenage boy in question to obtain his own views. This court dismissed the appeal, upholding the judge’s exercise of discretion not to adjourn. Hale J said that where a report was without any firm recommendation in any particular direction, it was unnecessary to adjourn and it would have been open to the judge to conduct his own evaluation of the relevant considerations and to weigh them slightly differently, even  in favour of the father, without the presence of the court officer. She added (at 620):

“Thus the case of Re CB cannot be a hard-and-fast rule of law. Procedural straitjackets in cases of this kind would be most undesirable, especially in the light of the balancing act which is required by the paramount consideration of the child’s welfare and the provisions as to delay in s 1(2). Many factors will have to be taken into account in the exercise of the court’s discretion. These will include how much further assistance the court welfare officer can give, and the extent to which it would be safe and proper to depart from any recommendations made.”

61. In Re W (Residence) [1999] 2 FLR 390, this court allowed an appeal from a judge who had departed from the court welfare officer’s recommendation as to residency. The officer had been present on that occasion, but the judge had failed to reason his disagreement with her report. Thorpe LJ said (at 394/5):

“In relation to the role of the court welfare officer, it cannot be too strongly emphasised that in private law proceedings the court welfare service is the principal support service available to the judge in the determination of these difficult cases. It is of the utmost importance that there should be free co-operation between the skilled investigator, with the primary task of assessing not only the factual situations but also attachments, and the judge with the ultimate responsibility of making the decision. Judges are hugely dependent upon the contribution that can be made by the welfare officer, who has the opportunity to visit the home and to see the grown-ups and the children in much less artificial circumstances than the judge can ever do. It is for that very good practical reason that authority has established clearly, since at least the decision of this court in W v W (A Minor: Custody Appeal) [1988] 2 FLR 505, 513, that judges are not entitled to depart from the recommendation of an experienced court welfare officer without at least reasoning that departure. The more recent decision of this court in Re A (Children: 1959 UN Declaration) [1998] 1 FLR 354 emphasises the importance of the judge testing any misgivings that he may have developed from the written report with the court welfare officer in the witness-box. This judge had the opportunity to voice such misgivings as he had developed during the welfare officer’s oral evidence and he did not do so.”

62. In the present case, I have sympathy for the difficult position that the judge was put in by reason of the absence of the Cafcass officer. Ward LJ considers that the mother’s successful opposition, on the basis of the undesirability of delay, to the father’s application for an adjournment for him to obtain legal representation, justified the judge’s decision to proceed in the absence of the Cafcass officer, despite his disagreement with her as to the proper outcome. In my judgment, however, the adjournment argument proceeded on a different basis, and did not depend on the absence of the Cafcass officer. In any event, the judge, in my judgment, failed to articulate the basis of his disagreement with the report. He discounted the views of the child and ignored the recommendation of the report. He did not argue his disagreement with Dr Cochrane in outcome: he simply referred to Dr Cochrane’s recommendation and passed on. His reason must have been that the child had settled. That, however, was just another way of saying that the wishes of the child (who had made the best he could of his situation) and the recommendation of the reporter were to be put aside. The judge did not explain why the seven months’ sojourn with the father was to be preferred to the life-time’s upbringing by the mother, especially where that upbringing had been acknowledged as successful. I do not consider that the judge properly addressed these matters, which he was required to do, all the more so in the absence of Dr Cochrane.

63. I would respectfully agree entirely with what Hale J said in Re C, that the absence of the court welfare officer cannot be allowed to put the court into a procedural straitjacket. That, however, was a case where the judge confirmed the officer’s recommendation, where the court had been able to hear the child, and where the real issue on appeal had been the entirely procedural question whether the judge could properly form his own view, in the absence of the officer, when an adjournment to permit the officer’s attendance had been considered and refused. The issue did not concern the judge’s own reasoning. In the present case, however, the judge had not heard (and did not listen to) the child, he had not rejected an adjournment to permit the attendance of the Cafcass officer, he ignored her recommendation, and the reason advanced (by implication) for doing so is unsatisfying.

64. I therefore return respectfully to my point of departure. I have attempted to express in this judgment my own way of seeing the matter. In terms of my Lord, Lord Justice Ward’s judgment, the following differences will have become apparent. (1) I do not see the judge’s findings, which I hope I have respected, to have been that there was an agreement that the child would transfer permanently to residence with the father. The agreement was that there would be a transfer for long enough to make it worthwhile for the child to change schools. If that had not been done, the child would have lost out on schooling. This was against the background where the child was in any event going to change schools after a further term. The mother seems always to have considered that the child would change schools in the autumn to the school where all his school-pals would themselves be going. (2) I do not regard the judge as having listened to the child’s wishes. He entirely discounts the child’s preference for living with his mother on the basis that this was natural; rejects the child’s expressed wish (and to Dr Cochrane and his mother, and to me, entirely understandable wish) to be with his mother for and after the birth of baby; and says in effect that the child is not sophisticated enough to understand his heart or welfare. (3) He rejects Dr Cochrane’s recommendations, which in part depend on her having listened to the child, without acknowledging in his judgment that that was what he was doing, and without having heard her or given adequate reasons for rejecting her findings and recommendations. These three matters, and particularly the judge’s errors under (2) and (3), go together. 

65. While recognising the importance of upholding a judge’s views on a weighting exercise which is so much a matter of assessment and discretion, and sympathising with Judge Hooper’s difficult position, I consider that for these reasons he nevertheless erred in principle. A short adjournment to allow for the attendance of the Cafcass officer should have been feasible. In my judgment, it would have been valuable for the judge to have heard what Dr Cochrane might have said in explanation of her understanding of the child’s wishes or of her ultimate recommendation or on the question of the child’s settled status. For these reasons I would therefore allow this appeal. I also agree with the judgment of Lord Justice Moore-Bick.

66. There is one further consideration which I would mention, but I do so with diffidence given the absence of express reliance on it at the appeal. I have no doubt that the father considered himself to be acting in the best interests of his son. The fact remains, however, that he made use of an opportunity to upset the life-long residence of the child with his mother and persevered despite the mother ultimately making quite clear her opposition to his application. The judge was tasked of course with the welfare of the child as the court’s paramount concern, and in this connection the mere fact that the father was, in seeking to keep the child, creating his own facts on the ground, is perhaps beside the point. The temporary status quo was a factor which could not be gainsaid. However, on the facts of this case, it would be wrong to allow it to fill the whole critical space of the weighting exercise. If the child is entitled to be heard to say that he wants to resume his life with his mother, then I consider that his welfare is not assisted by the court ignoring those wishes on the ground that he is now “settled” in his new home. Such a doctrine enables one party to the litigation to make the facts which lead the court to ignore the views of the child, here maturely and reasonably expressed, and supported by the Cafcass reporter’s own recommendations.

67. It was accepted in the course of argument that, if this appeal were allowed, the matter would have to be remitted for a fresh hearing. In the outcome, I would propose that the case be remitted to be heard  anew by another judge, and that a fresh Cafcass report be obtained from another Cafcass officer. The matter should be given expedition.

Lord Justice Moore-Bick:
68. I have found this a difficult and troubling case, recognising, as I do, the very considerable knowledge and experience that Ward L.J. brings to bear on a matters of this kind. As far as the first issue is concerned, I entirely agree with him and do not wish to add anything to what he has said. On the second and third issues, however, like Rix L.J. I find myself driven to a different conclusion from that which he has reached.

69. The circumstances which have given rise to this appeal have been described at length by Ward and Rix L.JJ. and there is nothing to be gained by my repeating them here. The CAFCASS officer, Dr. Cochrane, who had met L at her offices and also at both his father’s and his mother’s homes, identified the key issue as being whether his mother’s behaviour was such as to warrant moving L from his home with his mother, where he had lived since he was 2 years old, in order to live with his father, where he had been since March of that year (some 5 months earlier). She clearly did not think that it did, because in paragraph 51 of her report she made the clear recommendation, albeit on balance, that L should return to live with his mother. In particular, in paragraph 54 she said that she was not convinced that the level of risk or distress to which he had been exposed was sufficient to remove him permanently from his mother’s care.

70. Dr. Cochrane’s recommendation was based on her observations of L, on his own expressed wishes, and on her interpretation of what lay behind his expressed wish to be with his mother when she gave birth to the baby that she was expecting in December. It is important, in my view, that she detected in what L said about that a subconscious need to reassure himself of his position in that close family unit. She also formed the view that, although L was very fond of both his parents, he missed his mother more than he was able to divulge to his father. At all events, her recommendation, although perhaps cautiously expressed, was unequivocal.

71. The judge referred to Dr. Cochrane’s recommendation in paragraph 14 of the note of his judgment, but he did not discuss it in any detail, simply saying that he felt it necessary to “drill into the underlying rationale”. In paragraph 15 he referred to the fact that L had expressed a wish to return to live with his mother, but a little later appears somewhat dismissive of the importance of that fact by observing that it is very difficult to judge a child’s wishes and feelings, particularly where there is the added dynamic of a father’s new partner. He concluded by saying that,

“So when it comes to wishes and feelings, therefore, of course he would naturally, by nurture as well as the elements of nature, be inclined to express his wish to live with his mother. But that to me is not the end of the matter.”

72. The judge found that L’s physical, emotional and educational needs were being more than adequately addressed by his father and considered that the fact that he had become stable in that relationship suggested that there was a positive disadvantage to him in moving back to his mother. However, in paragraph 18 of the note the judge referred to the question of L’s emotional needs, which he said he had to address because his mother had raised the question of how he would react to the arrival of the baby. It seems that L’s mother had expressed her own concern that L would feel excluded if he were not living with her when the birth took place, but that was something that Dr. Cochrane had also raised in her report, describing it as an important matter for L. It is not clear whether the judge fully recognised that this concern was endorsed by Dr. Cochrane, because he dealt with the matter by saying:

“It seems to me that a 9 year old and here also is an interface with the age consideration of the welfare checklist – needs to understand and manage, in a more sophisticated way merely than being perceived to be a requirement to move back to mother, the arrival of a nine year younger baby for mother.  It seems to me that in the circumstances that is, so far from not undermining his likely emotional stability, something which he would no less well judge and manage from the security of his, by now, 7 month’s established life with C and his father and his half-brother L in their home. He would continue to have contact and I shall so order it.  But in the circumstances it seems to me that it is entirely proper that he enjoy and benefit from the arrival of the new baby from the stability of an established household and a school regime based around that household, than there be any consideration of  his needing to be back with mother in the circumstances of the arrival of a new baby if he is not in that situation now.”

73. I recognise that this was a difficult case, made no easier, paradoxically, by the fact that L’s mother and father were both loving parents who were well able to provide him with a good home. I also recognise, as Ward L.J. has emphasised, that we are dealing with a decision that involved the exercise by the judge of his discretion and that we are not entitled to interfere with that decision unless we are satisfied that he made an error of law or reached a decision that lies outside the generous ambit within which reasonable disagreement is possible. However, it must be recognised that the court must look at the substance of the matter and that a failure to take into account one or more relevant factors in the exercise of discretion entitles this court to set aside the decision.

74. The case was a difficult one because on one hand there was the fact that L had lived for many years very happily with his mother, to whom, if given the choice, he would have preferred to return and on the other the fact that he had settled well with his father, in whose household he could continue to find the stability that any child of that age needs. Three matters, however, called for particular consideration when deciding which was the better course to take in his interests.  First, the expressed wishes of L himself, who was, as the judge found, a thoughtful and sensitive boy and one who was approaching the age at which it is recognised that the child’s wishes should be given considerable weight: see Re L and others (Contact: Domestic Violence) [2000] 2 F.L.R. 334 per Dame Elizabeth Butler-Sloss at page 340. Second, L’s emotional need to be at home with his mother at a time when the baby was born, a need recognised by Dr. Cochrane. Third, Dr. Cochrane’s assessment that the mother’s behaviour did not warrant moving L from her home and her consequent recommendation that he should return to her. I regret to say that I do not think that the judge dealt adequately with any of these factors.

75. It is quite true that in paragraph 15 of his judgment the judge referred to L’s expressed wish to return to live with his mother and to that extent it cannot be said that he overlooked entirely what on any view is an important element in the checklist. There is a difference, however, between acknowledging the existence of a factor and taking it properly into account. Of course it is for the judge to decide what weight to give to each of the various factors that presents itself in the case before him, but there is a distinction between simply identifying a factor and taking it properly into account, just as there is between correctly identifying a principle of law and actually applying it. In the present case I can see no indication that the judge evaluated L’s expression of his wishes, that he considered to what extent his age or maturity affected the weight to be attached to them or that he considered how heavily, if at all, they weighed in favour of returning L to his mother. On the contrary, he appears, having recorded them, to have disregarded them on the grounds that they were little more than a reflection of the natural affection that L could be expected to feel for the person who was both his mother and the parent by whom he had hitherto been brought up. Of course L’s wishes could not be determinative and the judge was right to say that they were not the end of the matter, but they should in my view have been properly taken into account. To put it another way, I see no sign that the judge really “listened to” what L was saying: see Re: D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 A.C. 619, per Baroness Hale at [57].

76. The judge did address the question of L’s emotional needs in greater detail, but here again, in my respectful opinion, he failed to grapple properly with the substance of the matter. It appears from paragraph 18 of the note of judgment that he felt it necessary to deal with this question largely, if not entirely, because of what had been said by L’s mother. If that had been the case, there might have been less force in the point, but in fact it formed a significant, if brief, part of paragraph 47 of Dr. Cochrane’s report and must have been one of the factors leading her to recommend that L return to his mother. The judge does not appear to have recognised that this was not merely mother speculating about L’s reaction to the birth of the baby but the view of a professional adviser who was better placed than anyone else to understand from her conversations with him what lay behind his expressed wish to be able to look after his mother at that time. Again, the judge does not appear to have evaluated that factor, simply expressing the view that L needed to understand and manage the arrival of the baby in a more sophisticated way. The impression one gets from the CAFCASS report is that L was in fact a relatively sophisticated child for his age and perhaps he could be expected to understand and manage the changes in his mother’s life that the baby’s arrival would bring without needing to return to live with her, but if, as Dr. Cochrane thought, L felt the need to reassure himself of his position in her family, that was a factor that in my view required proper consideration. Again, it was only one among many factors; it could not be decisive, but it needed to be properly evaluated.

77. Finally, there  is Dr. Cochrane’s recommendation itself. As I have already said, the judge did not discuss it or the grounds on which it was based in any detail and having said that he proposed to examine its underlying rationale, he failed to explain the grounds on which he disagreed with her conclusion. Mr. Hepher submitted that it is not right for a judge to depart from the recommendation made by the CAFCASS officer without first hearing from the officer in person and that if necessary the proceedings should be adjourned to enable the officer to attend. He based that submission on the observations of Purchas L.J. in Re CB (Access: Attendance of Court Welfare Officer) [1995] 1 F.L.R. 622 (CA) and of Thorpe L.J. in Re W (Residence) [1999] 2 F.L.R. 390, 395 to which Ward L.J. and Rix L.J. have referred.

78. I agree with Ward L.J. that there can be no hard and fast rule in a matter of this kind, especially in a case where the attendance of the CAFCASS officer will require an adjournment when many other factors, not least delay, will have to be taken into account. That was recognised by Hale J. in Re  C (Section 8 Order: Court Welfare Officer) [1995] 1 F.L.R. 617. That case was very different from the present, however, since the judge did not decline to follow the welfare officer’s recommendation and the only question was whether he should have granted an adjournment to enable the welfare officer to attend. Since the report was essentially neutral I do not find it surprising that the court affirmed the judge’s right to make his own evaluation on the basis of the material before him. I am not sure that the result would have been the same if there had been a clear recommendation from which the judge had been minded to depart.

79. Ultimately, as Hale J., pointed out, what really matters is how much further assistance the CAFCASS officer can be expected to give and the extent to which it would be safe or proper to depart from any recommendation without first obtaining his or her response. In general, however, I think that unless there are strong reasons to do otherwise judges should follow the guidance of Thorpe L.J. in Re A (Children: 1959 UN Declaration) [1998] 1 F.L.R. 354 and if minded to depart from the recommendation of an experienced CAFCASS officer should test any misgivings that they may have with the officer in the witness box before reaching a final decision. In this case the judge cannot be accused of not giving reasons for departing from the recommendation in the CAFCASS report, but he does not appear to have considered whether he should test his misgivings with Dr. Cochrane. It is true that at the outset of the hearing he had refused an application by the father for an adjournment to enable him to obtain legal representation, in part on the grounds that it would delay the outcome of the proceedings. It is also true that the application was opposed by the mother on those grounds. However, it is unlikely that at that stage the judge had formed any clear view about the likely outcome of the case, so there is no reason to think that one of the factors he had already taken into account when considering an adjournment was the opportunity it might afford of enabling Dr. Cochrane to attend. Had he considered the question again at the close of the parties’ submissions, I do not think that he could properly have concluded in a finely balanced case of this kind that her attendance was unlikely to be of any significant assistance.

80. Like Rix L.J., I am left with the clear impression that the judge was overwhelmingly influenced by the fact that L had settled with his father and that that factor led him to brush aside without giving them proper consideration other factors which tended to point in favour of returning him to his mother. The fact that L had settled well and was happy at his new school was undoubtedly a matter of considerable importance, but Dr. Cochrane was well aware of the situation and in the light of the other matters to which she refers it had not led her to recommend that he should remain with his father. That fact alone, therefore, could not justify disregarding the other factors to which I have referred, nor can it justify a failure to hear from Dr. Cochrane before rejecting her recommendation.

81. In this case I think that the judge erred in principle in failing to give proper consideration to L’s wishes and to his need, as identified by Dr. Cochrane, to be with his mother when the baby was born; he also erred and in failing to hear from Dr. Cochrane before departing from her recommendation. For all those reasons I would allow the appeal. I agree with Rix L.J. that the matter should be remitted to the county court for rehearing before a different judge and that another CAFCASS officer should be asked to prepare a fresh report for that purpose. I also agree that the matter should be expedited.