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F (A Child) [2009] EWCA Civ 313

Appeal by mother against order, in contact and shared residence proceedings, that her children should be returned to live in the city where they had grown up with the father. Appeal dismissed.

The couple were unmarried and there was a significant gap in their ages: the father was 50 at the time of the proceedings and the mother 25. Their relationship had broken down several times between 2003 and 2007 and there was a gap of 18 months in that time when the father claimed that he had been the primary carer for the children: the mother opposed this. In 2007, after some allegations of domestic violence, the mother left Nottingham with the two children to near her mother in Droitwich.

At the hearing the trial judge had found that there had been no domestic violence and that the father had looked after the children largely on his own for a period. Consequently the CAFCASS officer recommended that the children should return to Nottingham and the judge made the order. Though this move would cause some disruption, in this appeal, Ward LJ made the point on the argument for the status quo that

"it would be better to address the checklist factors than rely on any presumption of fact which may arise from an argument of that kind.  The status quo argument means no more than that, if the children are settled in one place, then the court is to have regard to section 1(3)(b) of the Act and consider the likely effect on them of any change in his circumstances."

So despite not being certain that he would have made the same decision Ward LJ dismissed the appeal as

"When I ask myself whether the judge exceeded the generous ambit within which there is that room for disagreement, I cannot say that he has.  The problem with this jurisdiction is that the more finely balanced the case is, the more difficult it becomes to appeal it.  Much as many trial judges would willingly surrender their adjudicative powers to a complete re-hearing by an appellate court, that is not the law."


Case No: B4/2009/0250
Neutral Citation Number: [2009] EWCA Civ 313
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 3rd March 2009



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(DAR Transcript of
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Mr A Neaves (instructed by Parkinson Wright LLP) appeared on behalf of the Appellant.


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Judgment (As Approved by the Court)
Crown Copyright©

Lord Justice Ward:
1. On 8 January this year, 2009, His Honour Judge Rundell, sitting in the Worcester County Court, made the following order at the conclusion of a two-day hearing before him.  He ordered that there should be shared residence in respect of the two children of this couple, a girl (I shall call her T) who was born on 19 April 2001 so she is soon to be eight, and her brother B, who was born on 29 October 2002 so he is six years old. 

2. He declared the division of residence by ordering that they should reside with mother on alternate weekends from Friday to Sunday with an additional weekend in each eight-week period.  They were to have half the Easter, summer and Christmas holidays with her and every half-term in February, May and October.  For the rest of their time (and, for the avoidance of doubt, that time to include all term-time) they were to reside with their father.  Mother was to have additional telephone contact with them and the matter was to be reviewed some time after 8 June.

3. The history of the matter is, very shortly, this.  The parents have never married but father has the parental responsibility of the children by sensible agreement reached between the parents.  Their relationship started some time in about 2000.  It was a relationship marked by quite considerable disparity in age.  The father is now 50 years old and the mother 25, so one sees that she was a very young girl herself when this relationship began.  There was a break in the relationship in the summer of 2002, whether in June or August may not much matter.  That separation endured for some 18 months, the parties being reconciled by the end of 2004.  There was an issue which the judge had to resolve as to who had cared for the children, who then had been very young indeed during that 18-month period.  After the reconciliation they continued to live together until their final separation, which occurred at the end of 2007, when, after an incident which the judge had to explore, the mother left the home in Nottingham and removed herself and the children to Droitwich to be near her mother.  For a while she may have lived with her mother but she soon found accommodation for herself.  She was then in a relationship with the father’s nephew, a man even younger than the mother.  That has since broken down.

4. The issue before the court arose from the father’s application for residence, which he issued on 29 February 2008.  For reasons that are sadly all too familiar to all of us, the case took its time to work its way through the system.  It was not disposed of until 11 months later, on 7 and 8 January of this year. 

5. There were two issues which the judge had to resolve on the first day of that hearing.  One related, as I have indicated, to deciding who the children’s main carer was in that approximately 18-month period from the summer of 2003 until the end of 2004.  The mother said the children were with her.  The father, taking the diametrically opposite case, said that the children lived with him.  The judge resolved that in the father’s favour.  He accepted the evidence of an independent witness, albeit a friend of the father, that the mother was seldom present, if at all, during that time. 

6. The second issue that required resolution, although the judge was not over-impressed with it, was whether or not there was some domestic violence shown by the father to the mother.  Once again he accepted the father’s evidence and found against the mother, again based upon the corroborative evidence of the father’s friend, and so he found that such aggression as was demonstrated was initiated by the mother.  He was not able to find that she was the victim of domestic violence.

7. Those two matters seem, as we understand it, to have occupied the first day of this hearing.  It is important to note that throughout that period the CAFCASS officer, Mr Webb, was present in court.  He had filed two reports for the assistance of the court: the first, a report dated 30 May and the second, a report of 19 December.  On both occasions he declined to make any recommendation (perfectly properly, I may say) whilst those two issues remained unresolved.  But having heard the judge make his findings on the first day in favour of father and against mother, he went off at the end of that day, discussed the matter with his line manager and, on the second day of the hearing, gave evidence in which he stated that he was then in a position to give a recommendation.  It was for shared residence, because he felt that to be important to reflect the involvement and the importance of both parents in the children’s lives.  He said, at page 1 of the transcript of his evidence:

“In the circumstances of this case I feel that the children should be returned to their home in Nottingham, which is their usual base, to be with their father and to be returned to the school where they were originally, where they originally began their education.”

I shall have to look at that evidence in further detail in a moment.

8. The judge having made his preliminary findings of fact then turned to the “welfare stage”, as he put it, of the application.  He noted that no-one had suggested that the children should be separated, quite rightly.  He recorded the history, namely that T, the daughter, had lived with mother and father until the summer of 2002, then for a while she was with mother.  B was born in October.  But from a time which began in the summer of 2003, at which stage B was still a baby and T a little girl of about two, the children lived with their father alone in Nottingham and only saw mother on occasions.  During that time, as the mother seemed to acknowledge in her evidence, she was undergoing a difficult period in her life, she was resorting to drugs and alcohol and it seems was simply not coping with the stresses of life during that period.  Let me say at once, however, that she has made an admirable improvement and the judge was totally satisfied both from her evidence and from forensic evidence and an “impressive” letter, as the judge described it, from the children’s school in Droitwich that the mother is “to all outward signs, at any rate, drug and alcohol-free”.  The judge continued:

“As I say, I accept that evidence, and I accept that she has reformed in that area of her life.”

9. The mother’s case was strongly advanced on an argument that the status quo was with her and that, accordingly, the children should not be moved without good reason.  There is obviously a case for an argument about preserving the status quo, but I venture to suggest that since the Children Act of 1989 it would be better to address the checklist factors than rely on any presumption of fact which may arise from an argument of that kind.  The status quo argument means no more than that, if the children are settled in one place, then the court is to have regard to section 1(3)(b) of the Act and consider the likely effect on them of any change in his circumstances. 

10. The judge addressed that question and concluded, in paragraph 27 of his judgment:

“Of course, a move to Nottingham would mean another change for the children.  Children of this age are usually quite adaptable.  They have only been living in Droitwich for some twelve months, and they would be returning to familiar territory and a familiar school.  In those circumstances, I do not consider that such a change would cause them any significant harm.”

In so finding, the judge would seem to have been accepting the evidence of Mr Webb, the CAFCASS officer, who, asked in cross-examination about changing the arrangements, it being put to him:

“There is no reason to unsettle that situation to put in place a situation that, to some extent, in terms of contact it leads to is very much unknown.

A: Clearly I don’t agree with that view.  There will be some disruption to the children in what I am recommending to the court.  I feel that disruption will be minimal.  The children will be returning to the area of the country where they have always been raised.  They would be returning to the former family home where the father still lives.  They would be returning to the school where they were previously educated.  That does not seem to me to be a major upheaval for these children.  It would be a minor change from what has existed for the past 12 months and the parents will have to work hard to minimise that disruption but it does not seem to me to be a significant factor.”

11. Returning to the checklist, the judge had to have regard to the ascertainable wishes and feelings of the children, considered in the light of their age and understanding.  As to that, he found (in paragraph 19) that:

“As far as the children’s wishes and feelings were concerned, … the children were initially unsettled after their move from Nottingham at the end of last year.  They would inevitably have missed their friends their and their school.  However, they are now well settled in Droitwich, and their school reports from the local school are good.  In any event, at their ages, the children’s wishes and feelings would carry limited weight.” 

That seems to me to be a correct assessment of that factor. 

12. Under subsection 3(b) of the Act, the court had to have regard to the children’s physical, emotional and educational needs.  There is not much directly in the judgment that deals with physical and emotional needs; perhaps because Mr Webb seemed to be confident, and was not challenged about it, that their physical and emotional needs would be well cared for by either parent because, looking at the factor in paragraph (f), how capable each of the parents were, he was satisfied and the judge likewise satisfied that both children would do well.  He said, in paragraph 26:

“I have no doubt at all (and I am happy to record this) that both parents love and cherish the children.  Both parents want the very best for the children, and they are acting with that incentive in mind.  Both parents, Mr Webb tells me and I accept without reservation, are capable of caring for the children more than adequately.  Mr Webb says:

‘The children will be well looked-after, and be safe, and will thrive in either household.’ 

I agree with that observation.”

13. Again he did not expressly deal with educational needs as a factor in 3(c) and I shall return to that aspect in a moment.  I have dealt with the likely effect of change.  Their age, sex and background threw up nothing of any significance. There was no suggestion of any harm being suffered, the judge having accepted that any disruption would be a minimal risk to the children.

14. So this was, as the judge found, and as the CAFCASS officer himself had found, a difficult and finely balanced case.  The judge therefore expressed his conclusion, in paragraph 33, in this way:

“Balancing all of those factors, I too find this a difficult and finely balanced case.  However, having given some considerable thought to the matter (but not without considerable hesitation I have to say), I prefer father’s argument, supported by Mr Webb, to those advanced on behalf of the mother.  I conclude that it is overall in the children’s best interests to return to Nottingham, subject to arrangements being made for generous time spent with the mother in Droitwich, if it is Droitwich where she intends to remain.” 

15. The arguments that had been advanced by the father were distilled by the judge, in paragraph 16 of his judgment, into these seven points. 

(1) that he was, as the judge found, for that 18-month period the children’s main residential carer;
(2) that during that period mother was not greatly involved;
(3) he pointed to the mother’s irresponsible behaviour in the past;
(4) he contended that the children had said they wanted to return to live with him;
(5) the fact that he had a female partner to whom the children related extremely well, and about which there was no dispute;
(6) his track record of supporting contact during the time the children were living with him; and
(7) last but by no means least, he relied on the CAFCASS officer’s recommendation, which was in his favour.

16. Those arguments, or certainly the majority of them, were accepted by the judge and found in favour of the father.  One cannot entirely ignore the background.  The judge had the advantage, which we have not had, of seeing these parties over two days and considering the evidence very fully and very carefully.  There was impressive evidence from the Nottingham school of the father’s total involvement and commitment at all times and especially when he was the sole carer of the children.  I have paid tribute to the mother for the huge changes she has made in her own lifestyle but she had, unfortunately, lapsed in the past.  As the judge said, last but by no means least was the CAFCASS officer’s recommendation. 

17. The case was indeed finely balanced, and Mr Neaves who has appeared for the mother today, has mounted an impressive argument against that judgment.  He continues to press the status quo argument but essentially, it seems to me, his best point is that if, as the judge found, the children will be well looked after and be safe and would thrive in either household, a finding he made, then the defect in the judgment is the inadequate explanation of the reasons which justified a change from a settled position, as settled it had become in the 12 months after the final separation of the parties.  Speaking for myself that argument has given me considerable pause for thought.

18. There is a reason for the change.  It is that given by the welfare officer: that they return to the environment in which they grew up.  It may not be of itself the most compelling reason but it is the explanation for the recommendation made by Mr Webb and it was the reason accepted by the judge: that their best interests were served by returning to Nottingham.  My difficulty in this case is one which I have felt as a trial judge dealing with these disputes and which I have since expressed in the Court of Appeal.  It is this.  In the well-known case of G v G [1985] 1 WLR 647 at 1385 Lord McDermott indicated that, in cases involving an exercise of discretion, the appellate court should not interfere unless there is some fact which the judge failed to take into account, or a fact which he wrongly took into account, or that he erred in principle.  None of those errors of law appear in this judgment.  The weight to be given to various factors is a matter for the trial judge not the appellate tribunal.  Consequently unless, in the exercise of his discretion, the judge can be shown to have exceeded the generous ambit within which there is room for reasonable disagreement, the appellate court should not interfere.  If one needs further reminder of the guidance from their Lordship’s house, see Piglowska v Piglowski [1999] 1 WLR 1360, where Lord Hoffmann emphatically says much the same thing.

19. I am far from certain that I would have made the same decision in this case, but when I ask myself if there was an error of law, I have to conclude that there was not.  When I ask myself whether the judge exceeded the generous ambit within which there is that room for disagreement, I cannot say that he has.  The problem with this jurisdiction is that the more finely balanced the case is, the more difficult it becomes to appeal it.  Much as many trial judges would willingly surrender their adjudicative powers to a complete re-hearing by an appellate court, that is not the law.  In this case, applying the law in G v G, I have to conclude that the judge was entitled to come to the conclusion that he did.  He gave the reasons which, whilst not all fully expressed are nonetheless adequate to explain why he did what he did.  With the same hesitation the judge himself felt I would dismiss this appeal.

Lord Justice Longmore:
20. I agree.

Lord Justice Moore-Bick:
21. I also agree.

Order: Appeal dismissed