H (Children) [2014] EWCA Civ 733

Mother’s application to the Court of Appeal for permission to appeal against what she contended was a “pre-emptory” change of interim residence orders in respect of her three sons

This was an application for permission to appeal with appeal to follow made by the mother of three boys, A, aged 15½, B, aged 13½ and C, aged 11¾ years, in which she sought to appeal the (interim) residence orders of Mrs Justice Parker made on 23rd December 2013. The mother and three children had been residing in a local Refuge (with A, due a history of violent and destructive behaviour, having spent some time residing with the paternal grandfather). 

Mrs Justice Parker made a residence order for A to the paternal grandmother until further order and an order in similar terms placing the younger two boys under a residence order to the father as she had found that the mother had the tendency to emotionally manipulate the boys against the father, had encouraged them to make false allegations against the father, and had been obstructive to contact.  The judge found that it would be "unsafe" for the children to remain with their mother pending further assessments. The order provided that the mother was to have one supervised contact session per week.  

The judge disagreed with the Social Worker and Guardian's opinion that the children should remain with their mother for the time being with no contact with the father on the basis of their expressed wishes and feelings. The judge drew a distinction between those wishes and feelings which are "expressed" and those which are "ascertainable" and found that "ascertainable" often means that the Court has to look at actions rather than words and the children had shown to be more than happy to have contact with their father.

The central theme of the mother's appeal was that the judge, who had been involved throughout, had reached a premature conclusion prior to hearing all the evidence such that it clouded her judgement once new evidence came to light. The main criticism was that the process was conducted unfairly.

This was distilled into two central arguments relating to:

i. The judicial interviews with the children
ii. Unfair Process

The Court of Appeal refused permission:

a) The judicial interview was conducted entirely in accordance with Guidelines for Judges Meeting Children who are Subject to Family Proceedings (April 2010) [2010] 2 FLR 1872). The guidelines make it plain that a judicial meeting is not for the purposes of gathering evidence but for enabling the "child to gain some understanding of what is going to on and to be reassured that the judge has understood him/her".

b) The advantage of judicial continuity is that it allows the judge to form a view of the evidence as it unfolds in successive hearings and thus the judge was entitled to draw on the evidence she had heard at previous hearings, at the fact-finding:

"In a case such as this, where, fortunately, judicial continuity had been largely maintained, the proceedings before the judge, at successive hearings, should be regarded as one single process"

c) The judge had justified the orders made on the facts as she found them to be:

"An immediate change of the primary residence of children during the course of ongoing court proceedings, where further assessment has been ordered, must be supported by evidence which establishes that such an interventionist step is proportionate to the need to safeguard the children's welfare on an interim basis."