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W, Re (A Child) [2005] EWCA Civ 1025

Application for permission to appeal against a residence order in favour of the mother refused.

Re W (A Child) [2005] EWCA Civ 1025

Court of Appeal: Lord Woolf of Barnes, Thorpe and Lloyd LJJ (12 July 2005)

Application for permission to appeal against a residence order in favour of the mother refused.

The mother and father were married in December 2002, and their daughter was born in April 2003. The marriage broke down at the end of 2004, and the father applied for an interim residence order; the mother countered with an application for a residence order and for injunctions under the Family Law Act 1996.

The judge heard the parents' respective proposals concerning care arrangements, and concluded that, in reality, the case was not a joint application, but an application by the father for the paternal grandmother to be the primary carer; accordingly, he applied the test set out in the House of Lords decision in Re KD [1988] AC 806, and granted a residence order in favour of the mother.

The father appealed, asserting (1) that the judge had failed to take advantage of the opportunity of an investigation of the family circumstances by a CAFCASS officer, and (2) that the judge had misdirected himself in regarding this as a contest between mother and grandmother, and he should have regarded the possibility of a shared residence order and invited submissions on that possibility.

Held, refusing the application for permission to appeal, that:

(1) management of the case was under the judge's control and, if there had been unreasonable refusal to request a CAFCASS officer's report at the directions hearing, the matter should have been raised at that stage; further, there was an increasing emphasis on the support role of the CAFCASS service, and government policy was to emphasise the need to reduce the time spent by experienced officers in investigation and report writing, and to make them more available for supporting orders that emerged from final hearings; thus, the judge exercised his discretion in a way that was not open to criticism; and

(2) the judge had considered the relevant evidence and reached his clear conclusion as to the intended arrangements: such an assessment was simply not open to challenge by the court. As to the suggestion that the judge should more specifically have considered a shared residence order, it was something that he was entitled to deal with, inviting submissions only from the mother; he was perfectly justified in saying that the division of the child's time, 40 per cent to mother and 60 per cent to father and his parents, 'is not in the long term a productive route down which to go because of the confusion that will inevitably be involved with a child who will not know where her primary home is'.

Read the full text judgment here