SW v IB
| Jurisdiction | England & Wales |
| Judge | Willans |
| Judgment Date | 01 March 2023 |
| Neutral Citation | [2023] EWFC 42 |
| Court | Family Court |
[2023] EWFC 42
HIS HONOUR JUDGE Willans
IN THE FAMILY COURT AT WEST LONDON
West London Family Court,
Gloucester House, 4 Dukes Green Avenue
Feltham, TW14 0LR
Sophie Connors (instructed by Kingsley Napley) for the Applicant
Alex Verdan KC (instructed by Payne Hicks Beach LLP) for the Respondent
PAPER TRIAGE
( pursuant to principles in G v G [2022] EWFC 151)
Introduction
The parties have been seeking to resolve child arrangements for their child, JB, who was born on 29 October 2020 and is now aged approximately 2 years and 3 months. Having failed to agree the arrangements the father issued an application before this Court. In due course the parties suspended those proceedings by consent in order to pursue alternative routes of resolution, namely arbitration. On 1 December 2022 the parents took part in a final arbitration hearing before Ms Claire Heppenstell MCIaArb. She produced a final determination (“the determination”) on 5 December 2022.
The mother objects to the determination and has applied by C2. The father asks for the determination to be upheld and has provided a draft order. The parties agree the principles in G v G [2022] EWFC 151 (per Peel J) apply.
I have regard to the following key documents:
a. The C2 application issued by the mother which attaches the determination under consideration
b. A skeleton argument dated 16 January 2023 authored by Mr Alex Verdan KC
c. Grounds in support of application
d. A statement of the mother dated 16 January 2023 on which the mother seeks to rely
e. A skeleton argument dated 1 February 2023 authored by Ms Sophie Connors
f. The authority of G v G.
Legal Principles
A Judge making any welfare order under the Children Act 1989 must be independently satisfied that it is a proper order to make with the paramount consideration being given to the child's welfare. The same principle applies where an order is sought to be approved (whether by agreement or not) after an arbitration process. The parties cannot oust the jurisdiction of the Court or the obligation on the Court to consider whether the order is consistent with the best interests of the child.
Where there is a challenge to the approval of an arbitration determination the test the Court must apply is as to whether the determination was ‘wrong’ nothing more and nothing less. The concept of ‘wrong’ is intended to capture the same concept as found in Part 30 FPR. When a challenge to an arbitration determination is mounted the Court should undertake a triage stage to consider whether the challenge has a real prospect of success. This mirrors the test that arises when permission to appeal is sought. If that gateway is crossed then the Court will proceed to a full inter partes hearing for a review of the decision. That will mirror a full appeal hearing. If the gateway is not crossed then an order incorporating the determination will be made.
The parties in this case have proceeded in accordance with the observations of Peel J at §31 of G v G. Both have had the opportunity to make representations as envisaged in FPR 4.3 (2) (a).
Background
I do not consider it necessary to repeat the background history adequately summarised in the arbitration determination. I have read and carefully considered that history.
Grounds for challenge
This can be summarised concisely. Whilst there were a number of areas requiring resolution the key dispute (for these purposes) was the question as to (a) the point at which overnight contact between father and child would commence; (b) the speed of progression of the same once commenced, and (c) the point at which the arrangements would be labelled as shared care (the parties agreeing this label should apply but at differing points in time).
In summary the mother sought a slower process. Her proposal before the arbitrator is found at §20 of the determination and sought to delay overnight contact until the child was aged 4 years of age. It would then increase incrementally over the next 7 years until it reached a point of care on a 7/7 basis, and at which point it would be shared care. The structure to this plan essentially developed the conventional weekend by 1 night per year until the final point was reached. In summary the father was looking for a faster process. His proposal before the arbitrator is found at §19 of the determination. He sought to commence overnight contact immediately with a shared care arrangement (2/2/5/5) being reached by the point the child reached 4 years of age.
The arbitrator concluded contact could start sooner rather than later and provided a detailed schedule (see final determination §1(A-H)) under which overnight contact would commence after approximately 3 months and incremental change thereafter reaching the 2/2/5/5 shared care position by June 2025.
The grounds of challenge are that in making this decision (which is said to amount to a ‘fundamental and radical change’) the arbitrator failed to place sufficient weight on the following factors:
a. the significant change that the introduction of overnights would represent;
b. the fact that JB had never spent a night away from the mother;
c. JB's experience of his mother being his primary carer who has met all his needs to a very high standard;
d. JB's deep attachment and bond to the mother and the need for any future changes to take this into account;
e. the key developmental stage that JB was at;
f. the high level of contact that JB was already having with the father (at least 4 times per week) and therefore there being no need for a radical change in the arrangements;
g. JB's need for routine, stability and security;
h. the recent changes that JB had undergone including his parents' separation, attempts to end co-sleeping, and reduced breast feeding, which JB was still adjusting to;
i. the need for any changes in arrangements to be at JB's pace and in stages;
j. the recent changes to the existing child arrangements made on 30.06.22;
k. JB's young age and characteristics;
l. the impact of this proposed change on JB's routine;
m. JB's emotional needs and his inability to manage these rapid changes;
n. the fact that JB would be commencing nursery in January 2023 and therefore would have to manage that significant change to his routine and need more time to adjust to this before the commencement of overnights.
The specific challenge is to two aspects of the determination:
a. The decision to commence overnight contact on 27 February 2023 (now 11 March 2023 following agreement of the parents to delay this for identified special reasons)
b. The decision to provide the father with the majority of weekends in an initial ‘settling in’ period between March and July 2023.
New evidence
The mother seeks to adduce further evidence in support of her application. She has filed a statement in which she relates the negative effect of the changes on JB since the date of the determination. The father opposes permission being given in this regard.
I do not give permission for the mother to rely on this ‘new evidence’. (1) It is trite that decisions in children law are by their very nature dynamic and that final orders can rarely said to be truly final in that parents can agree changes, or seek the Court's determination as to changes, as circumstances change over time. However, there is a very real danger in permitting parties to provide their post-determination evaluation of how the order has progressed in the days and weeks following a decision. Such re-evaluation runs the risk of being subject to the very subjective perceptions as previously expounded at the hearing when the decision was made. It cannot be right for an appeal court (and this process if analogous) to allow the process to effectively become a rehearing rather than a review of the primary decision. Permitting this form of ‘new evidence’ would make that an almost inevitability. (2) I am not satisfied this meets the test expounded in Ladd v Marshall in any event (even when viewed with the greater latitude envisaged in Re G (A Child) [2014] EWCA Civ 1365. This information is updating information which could never have found its way before the arbitrator. (3) Finally, I agree the arbitrator was very alive to this issue within her judgment. She accepts there is likely to be an element of ‘initial upset’ in the settling down period.
Triage determination
I am not satisfied this application has real prospects of success such as to justify an inter partes hearing. Rather I consider the determination should now be endorsed by the Court and the draft order approved. In reaching this conclusion I make the following observations:
a. The adjudication in this case was thorough and reasoned. On my reading the arbitrator provided a clear and persuasive analysis of the reasons for setting her determination. She undoubtedly focused on the key factors relevant to her determination and did so in a painstaking fashion.
b. Of course, she might have set the progression of contact at a different pace, but any triage assessment must have regard to there being a band of reasonable decisions.
c. To the extent the decision was based on submissions rather than evidence this flowed from the agreement of the parties.
d. The determination proceeded in circumstances in which there was no real challenge to the importance of the relationship of JB with both parents and there was no meaningful welfare issues in dispute. The parents agreed over time the child should enjoy shared care they simply couldn't agree when.
e. The outcome reached by the Judge can be viewed as objectively unsurprising. Whilst there can be no presumption as to how contact should develop the conclusions reached are far from atypical in case with these features.
f. In contrast the mother's timetable was unusual as to...
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