NO: B1/2000/3236
Neutral Citation Number: [2000] EWCA Civ 402
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HUDDERSFIELD COUNTY COURT
LEEDS TRIAL CENTRE
(HIS HONOUR JUDGE CLIFFE)
                                  Royal Courts of Justice  
                                  Strand    
                                  London WC2
 
                             Thursday, 14th December 2000

B e f o r e :

LORD JUSTICE WARD

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IN THE MATTER OF

D (a Child)

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Telephone No: 0171‑421 4040 Fax No: 0171‑831 8838
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MR DENNIS N  SHARPE (instructed by Beverley J Golden, Trotts Lane, Eling, Hampshire S040 HUE) appeared on behalf of the Applicant

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J U D G M E N T
Thursday, 14th December 2000
1.	LORD JUSTICE WARD:  This is a renewed application for permission to appeal against the order made by His Honour Judge Cliffe on 14th September 2000 when he ordered that a young girl, M, who was born on 12th November 1998, who is just two years of age, should reside with her father.
2.	The parties were married but unhappily. They separated in about July of 1999. M remained with her mother. There is in fact an order by consent confirming that position made by His Honour Judge Garner on 15th October, but the father became concerned principally about the mother’s capacity properly to care for M, given her propensity, so it was said, for excessive drinking.
3.	In December M stayed with father. He received an interim order from the district judge confirmed by Judge Garner on 21st December, but it is an interim order and should be treated very much in that light. There followed a two‑day contested hearing, very bitter it seems but very thorough. A week later the judge gave his judgment.
4.	Mr Sharpe renews the mother’s application, his first  attempt having been refused on the papers by Thorpe LJ. I am bound to say that when I read the papers independently of My Lord’s view, I came to precisely the same conclusion.
5.	But Mr Sharpe urges upon me a number of main points. The first is that in addressing the issues on page 2 of the judgment, the learned judge failed to add among the issues where the child’s long‑term care or even medium‑term care lay and he failed to have regard to the fact that this was a young child who ordinarily one would think would be with mother. I understand the complaint and I had understood it from the written argument, but at that time I was not overimpressed.
6.	Mr Sharpe then draws my attention to the findings of fact, which in many respects were directed to the drinking allegation and the facts were found against the mother in that regard. But my attention is specifically drawn to the third finding of fact which is:
“ ... her present medical condition casts doubt upon her ability to cope with the child on a full‑time basis together with a new baby. That is by reason of her stroke in April of this year, her admission to hospital in July of this year, and her previous history of post natal depression.” 
7.	To come to this court challenging findings of fact is  sometimes to attempt to scale Mount Eiger going backwards, but nonetheless Mr Sharpe persists in it and it seems to me that he may just have a point. He draws attention to the medical reports, which were agreed reports put before the judge, and the conclusion of the general practitioner, conclusion number 7 is:
“I can confirm that there is nothing within the medical records that would indicate at present that Mrs D is physically or mentally unfit to look after a young child with another baby on the way.”
8.	Dr Baig, Consultant Physician and Cardiologist, says in his report on 7th September:
“As far as I am aware she has not sustained any worsening of her physical condition and no concerns have been expressed by the obstetrician regarding her ability to look after her daughter or her new baby when he/she is born. On that basis I think it is reasonable to conclude that Mrs D should be able to manage the care of her children in the foreseeable future.” 
9.	The point is strongly made that in the light of that agreed evidence there was no proper evidence before the judge justifying his third conclusion. That is a conclusion which, when put into the balance, was undoubtedly one which was of weight, the judge finding that the father’s ability to manage the child was proven when he said:
“... whereas the mother’s ability to do so is  unproven and questionable because of her health and the demands of her new baby.” 
10.	To what extent that would have so distorted the balance as to render the judgment unsustainable is a matter about which I would refrain from comment, but it seems to me that Mr Sharpe has just persuaded me that there is an argument properly to present that the judge wrongly found the facts, wrongly put that matter in the balance, and then with the other factors which were not so impressive by themselves, namely the young age of the baby, the question marks which may exist over the father’s plans for the care of this child with the help of his mother and partner, who gave evidence, the possible emphasis on the present state of affairs and too much emphasis on status quo, all of that I suppose just amounts to an arguable case.
11.	Although I give permission, mother should not build up her hopes. It is not the law of the land that mothers are always entitled to their children, and in this day and age I am afraid everybody has to accept that fathers and even working fathers may be perfectly capable of looking after even young children ‑‑ even young girl children. So although I give permission, it is not to be thought to be the path to success.
(Application for permission to appeal granted)