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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> W (Children), Re [2001] EWCA Civ 994 (20 June 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/994.html Cite as: [2001] EWCA Civ 994

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
(HIS HONOUR JUDGE KENNY)

		Royal Courts of Justice Strand London WC2A 2LL 20 June 2001

1. LORD JUSTICE THORPE: This is an application for permission to appeal which is caught by section 55 of the Access to Justice Act 1999. It was provisionally refused on paper on 25 May 2001. Mr de Burgos excercises his right to renew the application at an oral hearing, fully justified because it is an unusual situation in which the system has arguably worked to the disadvantage of his client.
2. The parties to these private law proceedings were married in 1985. They had 3 boys, J who is 14; D who is 11 today; and T who is 6. The parties separated on 7 September 2000. Thereafter, cross applications for residence orders in respect of the three children were brought before the court.
3. The parties are in their early 40s and are both from prosperous and educated backgrounds. The father, as the Secretary and Financial Controller of a large firm of solicitors, is the full-time bread winner. The mother is a musician who has worked part-time as a music teacher but, as the circuit judge found, and I quote:

"Her main occupation during the marriage has been the care and upbringing of the children."

4. Somewhat unusually, the cross applications in this case, which were of the greatest importance to the parties, were listed before a district judge of the Bedford County Court under relatively recent enlargement of the jurisdiction of the district judge. The case was investigated by a court welfare officer who took the clear line that the father should have the residence order, partly because he was the stronger parent both physically and emotionally, and partly because there seemed be some leaning to that conclusion in the minds of the children, in particular the middle boy. The district judge indorsed that appraisal making an order to the father with extensive contact to the mother.
5. The mother appealed and the appeal was transferred to the Watford County Court because circuit judges seldom sit in Bedford. In order to get the case heard expeditiously, a space was found for trial in the Milton Keynes County Court before His Honour Judge Kenny. The district judge made his order on 27 February and the court was able to list it before Judge Kenny, in less than eight weeks, on 18 April. He varied the order of the circuit judge and made a joint residence order instead of a residence order to the father. Effectively he reversed the domestic arrangement by ordering that the boys should sleep principally at their mother's home and that they should spend the same sort of time in their father's home as had been directed by the district judge to the mother under the contact arrangement. So the order could have been expressed as residence to the mother with contact to the father in almost identical terms to those directed by the district judge to the mother. That would have been a plain reversal.
6. The unusual feature of the case is that the judge held that both the district judge and the welfare officer had fallen into error. As he put it:

"I believe that they have approached the case in the wrong way and have missed its point."

7. In that the judge meant that they had carried out a comparative evaluation of what each of the warring parents had to offer and then plumped for the parent achieving the higher score. Judge Kenny's approach was that the fundamental foundation for the future must be the successful past in which, prior to the recent separation, the family had thrived. The basis of that success had been a bread winning father and a home-making and child caring mother. The judge asked the question:

"What has each of these parents to contribute to the future? What is the best way of ensuring that the children are not disadvantaged as a result of the breakdown of the marriage?"

8. He concluded that the answer was, as far as possible, to replicate the recipe of the past which had proved so successful. He said:

"...the family dynamic structure, as it existed until the breakdown of the marriage, was very beneficial to the children, and should only be disturbed or changed as far as it is clearly proved to be necessary to do so."

9. He also put it in this way:

"The parents must not be encouraged to think that the outcome of these proceedings is a win or lose for themselves. The only winners must be the children."

10. He said that on that approach there were overwhelmingly important factors. First, the role of the father in the family as a successful prestigious career man; secondly, the mother's role, just that of mother. The judge continued:

"Looked at in that way, the essential consideration for the court is, what arrangement should be made to continue the successful upbringing of the children and to ensure that they receive the maximum benefit from all the gifts that their parents have to offer. In my judgment, there is only one answer to that question. The arrangement must be such that both parents should be able to continue to fulfil their roles."

11. Having defined those roles, he concluded:

"In particular, to impose the mother's role on the father in addition to his own seems to me to be an experimental course that invites failure."

12. That is undoubtedly an evaluation of welfare that is individual and, possibly, novel but the judge was careful to apply the welfare check list to this approach. He was also careful to remind himself that the district judge, having seen and heard the witnesses and reached a discretionary conclusion, it was only in rare cases that a judge sitting on appeal could be justified in substituting his discretion for that of the judge below.
13. I cannot see that there is any sufficient point of law or principle, or any other compelling reason, to admit the case. I have some sympathy for Mr de Bergos' client who will, no doubt, feel that he should have the same appellate right as was exercised against him by the mother. But it is an important principle of our restructured appellate system that there should not be more than one appeal in any case, save in exceptional circumstances, and that any appeal should be conducted at the lowest appropriate level within the system. There has to be an end to litigation in families.
14. Judge Kenny's judgment was a rallying call to these parents to stop litigating and to put the children first. His emphasis on his determination to make the children happy deserves every support. This was a clearly reflected judgment of an experienced circuit judge, particularly experienced in this field.
15. For all those reasons, I do not consider it would be right to sanction further proceedings within the family.
Order: Permission to appeal refused