Breaking (new) law: David Burrows reports on the challenges of Re M (Children)
- What are the Court of Appeal limits on review of a judge’s discretion in cases of paramountcy of a child’s welfare is in issue?
- How far is a child’s view material to a case?
- What duty does the court have `positively to promote contact`?
The recent Re M (Children) [2017] EWCA Civ 2164, [2018] All ER (D) 16 (Jan) raises questions about the extent to which an appellate court is by law permitted to impose its own views where statute has given discretion to a judge to decide a particular issue. The law on this point arises in all judicial decision-making, notably—under review here—in child arrangements order cases; and has been considered authoritatively by the Supreme Court/House of Lords over the past 30 years (four of many examples appear below).
In the Re M case the appeal judges sent back for reconsideration the contact application of a transgender father. She was seeking contact with her five children:
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