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Re W (A Child) [2005] EWCA Civ 1276

Application for permission to appeal against residence order refused.

Re W (A Child) [2005] EWCA Civ 1276

Court of Appeal: Wall and Moore-Bick LJJ (13 October 2005)

Application for permission to appeal against residence order refused.

The mother and father of a child, born in July 2003, were married for a year and separated in February 2004. In the divorce proceedings, there was a financial clean break, so the only issue between the parties was what should happen in relation to their child.

The judge heard evidence from both parents, who were intelligent and competent, and considered the possible alternative arrangements, namely a shared residence order or sole residence in favour of one parent with contact to the other. A CAFCASS report was also prepared, which recommended that the appropriate order was residence with the mother, and substantial amounts of time with the father (including weekend contact); however, the father was dissatisfied with the recommendation, and the CAFCASS management became involved in inviting the CAFCASS officer to reconsider her recommendation, with the result that she wrote a short report identifying the options open to the judge, but without making any specific recommendation at all. At the conclusion of the hearing, the judge made a residence order in favour of the mother and defined very carefully the extensive contact which the father should enjoy.

On the father's application for permission to appeal, he raised a number of grounds of appeal, including criticism of the judge for relying on the potentially flawed first CAFCASS report as an erroneous exercise of discretion which resulted in an irrational outcome.

Held, refusing the application, that the judge had analysed the evidence, assessed the parties, looked carefully at the child's welfare, recognised the strength and defects on both sides and reached a discretionary conclusion. The decision was carefully considered by the judge in a judgment which covered all the relevant points in the case. Accordingly, it was a decision with which the full court, if permission were granted, could not possibly interfere.

On the particular point of the CAFCASS report, the court considered that the judge had been entitled to look at the report, and could not have been expected to say that he would not look at it simply because of the subsequent intervention by the CAFCASS management. As it happened, it appears that the judge's assessment of the parties coincided substantially with that made by the CAFCASS officer.

Read the full text of the judgment here