England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ILFORD COUNTY COURT
(His Honour Judge Platt)

		Royal Courts of Justice Strand London WC2 Friday, 28th September 2001

Friday, 28th September 2001

1. LORD JUSTICE THORPE: This is a renewed application for permission to appeal an order made by His Honour Judge Platt in the Ilford County Court on 27th June 2001. The effect of his order was to transfer the residence of the only child of the marriage, M, from mother to father.
2. M is eight years of age and, sadly, his parents separated when he was about four. His mother left the former matrimonial home where his father continues to reside. There is no doubt that she has cared for M admirably over the course of the last four years and, at first blush, an order transferring residence to father is a surprising order. It is not only a surprising order, but it is a very difficult order for the mother to accept; and in those circumstances it is no surprise to me that the provisional refusal on paper has been challenged by Miss Sapnara at an oral hearing.
3. Miss Sapnara has put her case with great fluency and she has said everything that could possibly be said in support of an application for permission. But although I have no transcript of the judgment below, I have a sufficiently detailed note taken by Miss Sapnara to see the structure of the judgment and the fundamental foundation of the judge's conclusion. Even the note of judgment shows that this was a carefully crafted judgment and that the learned judge conscientiously applied the welfare check-list to conclusion. But he also relied significantly on the opinion of the reporting officer, Mr Breeze. It does seem to me that he was right to do so since Mr Breeze had been involved with the family over a number of years. He had reported on 9th September 1997 and at that stage he had clearly recommended a residence order to the mother. He had reported again on 27th September 1998, when he reported to the judge that there seemed to be no reason to consider a transfer. So his report for the purposes of this hearing, dated 2nd May, gains added significance against the flow of earlier reports. For the first time Mr Breeze was recommending to the judge in pretty strong terms to order the transfer.
4. The point that was made by Mr Breeze is one of fundamental importance. It is in paragraph 43 of his report where he points out that M would experience considerable change whatever the court ordered. He said:

"Over the past year M has already had to cope with a considerable lack of stability: no Contact with his father (between June and September); his mother becoming remarried (October); moving house (late October/early November); his school teacher taking six months maternity leave (October to March); loss of contact with his friend across the road at his old house (since November) - and now either moving house and school again, or facing the imminent arrival of a step-father - with all the implications that will, inevitably follow."

5. In the next paragraph the reporting officer observed that M had reached an age when his stated wishes carried weight. As the reporting officer said:

"Now, however, he is clearly stating a preference to reside with his father/paternal family in Chatham, and he was clearly much less at ease when we saw him in his mother's environment in Ilford."

6. He went on to say in his concluding paragraph that the time was essentially right, in the light of the unsettled events of the previous year in his mother's care, for a radical revision. The welfare officer said that a move to his father some day was inevitable and therefore what point was there in delaying it. The judge did not adopt that approach, saying that he had to consider what was immediately best for M without regard to future speculation, but otherwise he accepted the advice and recommendation of the court welfare officer.
7. Advice of this sort, strongly expressed and fully reasoned, binds a judge unless he carefully explains his reasons for departure. This judge did not feel that it was necessary for him to dissent from the welfare officer's recommendation. He acknowledged that the case was finely balanced, he went to some trouble to emphasise to the mother that the decision he had reached involved no implicit criticism of her and he gave clear warning to the father and his family that in the future there must be no overt or hidden criticism of the mother and that the contact arrangements had to work.
8. The point that must be stressed is that the discretion to take these difficult decisions lies with the Circuit Judge. This court must respect the responsibility of the judge who has seen and heard the witnesses to decide the matter. It is not for this court to substitute its discretionary assessment for that of the judge below. This court may only interfere if the judge is demonstrated to have fallen into patent error.
9. As I said when provisionally refusing the application, the decision that is challenged was finely balanced, carefully reasoned and followed the advice of the court welfare officer. Despite all Miss Sapnara's efforts, I don't think she establishes any significant misdirection or error in the reasoning process, and in the end there are simply insufficient prospects to justify the grant of permission. Accordingly the application is refused.
Order: Application dismissed. Detailed assessment of the Applicant's costs.