R (A Child), Re [2009] EWCA Civ 445 (22 May 2009)

R (A Child), Re [2009] EWCA Civ 445 (22 May 2009)

The trial judge did not err in law or exceed the bounds of reasonable discretion in deciding that the child's welfare required him to remain with his father, despite the child's expressed wish to return to his mother and the CAFCASS officer's recommendation. The judge properly considered all relevant factors, including the child's wishes, stability, and the need to avoid delay. There was no procedural unfairness in the judge's questioning or in not calling the CAFCASS officer to give evidence.

Citation
[2009] EWCA Civ 445
Parties
Subject: R (A Child); Appellant's Advocate: Mr Paul Hepher; Respondent's Advocate: Ms Nina Bache
Jurisdiction
England and Wales
Judgment Date
22 May 2009
Procedural Posture
Appeal (residence Order, Children Act 1989) / Court of Appeal Judgment
Outcome
Appeal dismissed (majority); trial judge's order for residence with father upheld.
Legal Topics
Residence Orders, Welfare of the Child, Children Act 1989, Appeals Procedure, CAFCASS Reports, Judicial Discretion
Family Law Child Law Residence Orders Welfare of the Child Children Act 1989 Appeals Procedure CAFCASS Reports Judicial Discretion

Case Brief

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Parties

R (A Child)

Subject

Mr Paul Hepher

Appellant's Advocate

Ms Nina Bache

Respondent's Advocate

Procedural Posture

Appeal (residence Order, Children Act 1989) / Court of Appeal Judgment

Legal Issues

  1. 1 Whether the trial judge erred in his approach to the child's wishes and feelings under the Children Act 1989
  2. 2 Whether the judge was wrong to reject the CAFCASS officer's recommendation without hearing oral evidence
  3. 3 Whether the judge's questioning of the mother rendered the hearing unfair

Ratio Decidendi

The trial judge did not err in law or exceed the bounds of reasonable discretion in deciding that the child's welfare required him to remain with his father, despite the child's expressed wish to return to his mother and the CAFCASS officer's recommendation. The judge properly considered all relevant factors, including the child's wishes, stability, and the need to avoid delay. There was no procedural unfairness in the judge's questioning or in not calling the CAFCASS officer to give evidence.

Court Disposition

Appeal dismissed (majority); trial judge's order for residence with father upheld.

Orders

  • Child to remain in residence with father.
  • Contact with mother to continue as previously ordered.