Children – Discretion – Residence orders

Re R (a child ) sub nom CP v (1) AR (2) CR (a child by his guardian): CA (Civ Div) (Lords Justice Wall, Wilson): 29 April 2009

The appellant mother (M) appealed against a decision of the judge to make a residence order in respect of her eight-year-old son (R) in favour of his paternal grandparents. Following the separation of M and the first respondent father (F), R had lived with M. He was their only child. After the parties divorced, M remarried and had another child. F subsequently began proceedings seeking contract and residence orders and the second respondent guardian was appointed for R.

It was a feature of the case that M and F were implacably hostile to each other. The guardian was granted leave to instruct an expert child psychologist (Z) to compile a report. Z took the view that R’s involvement in the parental battle would have a high risk of progressively increasing his negative and aggressive behaviours, of inducing an increasingly negative self-image and of causing him to have relationship difficulties, and that if M and F did not act to form a constructive and stable agreement about the future life arrangements for R, then they would both be knowingly causing him harm.

Z advocated consideration of a change to independent foster care. The guardian’s recommendation was that neither parent was in a position to care for R and that a residence order should be made in favour of his paternal grandparents, whom she had visited on three occasions.

At the conclusion of the four-day hearing, the judge gave an extempore judgment in which he accepted Z’s evidence, in particular as to the harm R had suffered and as to the likelihood of further serious harm if there was no change, and also that of the guardian. He concluded that going to live with the grandparents, although they were not independent, was a better option for R than being placed in independent foster care, and made a residence order accordingly.

M contended that the judge’s decision had been plainly wrong, in that he had failed properly to consider the central importance in R’s life of being brought up by his parent or parents, the importance of stability for R and his relationship with his half-brother and stepfather. She submitted that the judge had failed properly to weigh the various competing factors and given undue weight to his finding of significant harm, and had thereby led himself into error in placing R with the grandparents. The guardian contended that the judge, having read the papers and having heard the oral evidence of the witnesses relied upon, had not erred in law or reached a decision in the exercise of his discretion that was so plainly wrong that this court should seek to change or alter the orders made.

Held: While sympathy was to be had with the judge’s pressure of work and his natural wish not to make the parties wait for a judgment, it was a great pity that he had not taken more time for reflection, as had he done so he would not have reached the conclusion he had. The judge had failed to grapple with the fundamental proposition that children have a right to be brought up by their natural parents unless their welfare positively demanded the replacement of that right. The judge’s natural view that R needed to be taken out of the arena led him to give that factor undue weight and caused him to lose sight of the fact that he was removing R not only from his mother’s care but depriving him of family life with his half-brother. The absence of any discussion of both factors in the judgment was startling and, while the first might be explained by the undoubted harm suffered by R while living in his mother’s care, the latter was a serious omission which vitiated the judgment. There was a second fundamental flaw in the judge’s reasoning, in that Z had been of the opinion that a placement with independent foster carers should be considered. The judge appeared to have accepted Z’s opinion, while at the same time recognising the fact that the paternal grandparents were patently not independent. The judge could not accept Z’s evidence and then take a course which was not one which Z recommended. Further, while the guardian was not to be criticised for forming the view that R would be better off placed with his paternal grandparents, her analysis had not been well researched or properly investigated. It had been based on three short meetings with the grandparents, and involved no real discussion of the effect on R of a move, or of the maternal grandmother’s age, which was a vitally important consideration, or of her capacity to care long-term for a boy of eight. It followed that there simply was not a proper platform from which the judge could take the step of placing R with his paternal grandparents. The judge had, accordingly, been wrong to have made the residence order he had. Although the judge had been exercising a broad discretion, he had seen and heard the witnesses, was an experienced family lawyer and a humane and highly competent judge, he had gone wrong in the present case. It was therefore the duty of the court to reverse his decision, G v G (Minors: Custody Appeal) [1985] 1 WLR 647 HL applied.

The residence order was accordingly set aside.

Appeal allowed.

Marina Faggionato (instructed by Purcell) for the appellant; in person for the first respondent; Birinder Kang (instructed by Pictons) for the second respondent.