FA-2025-000247 - [2025] EWHC 2437 (Fam)

The background to the matter can be taken relatively shortly for the purposes of considering the issues that arise on appeal.

J was born on 2 November 2016 and is now aged 8 years old. L was born on 7 September 2018 and is now aged 7 years old. The parties married on 13 July 2022 and separated in December 2023.

The issues with which the Recorder was concerned arose in the context of the mother having moved with the children from X county to Y county and enrolled the children in a new school. The Recorder was satisfied that the mother took this step without notice to the father, the mother asserting that she had done so on the basis of erroneous legal advice. Within this context, upon the application of the father, the District Judge made a joint “lives with” order on an interim basis. The father remained living in X county and the mother remained living in Y county. The distance between the parents’ respective properties is some 70 miles. The matter was listed for final hearing before the Recorder.

The Recorder had the benefit at the final hearing of a report and an addendum report from a Family Court Reporter (hereafter “FCA”) and heard evidence from her. In her first report, the FCA recommended that the children should live with both their mother and their father but without relocation, meaning that the children would stay with their father during the week and with their mother at the weekend and would remain in school in X county. In her second report, following receipt of evidence from the school, including some CPOM forms, the FCA again concluded that there was no indication that a relocation to Y county was “necessary” for the children. In her oral evidence before the Recorder, the FCA confirmed that her recommendation remained the same, namely that the children should reside with their father during the week and with their mother three weekends out of four. The Recorder’s judgment further notes that, in the context of the mother living some 70 miles from the school the children then attended in X county, the FCA recommended a further midweek overnight contact with the mother during the week the children did not spend the weekend with her.

The Recorder made clear at the outset of the judgment that, in the foregoing circumstances, the “key question in this hearing has been where the children should live during the school week”. In that context, at the conclusion of the evidence the Recorder gave an ex tempore judgment in which he concluded that, during school term time, the children would live with their Mother from Monday morning until Friday evening and would live with their Father from Friday evening until Monday morning and would attend the school in Y county.

The father now contends that the Recorder was wrong to invert the child arrangements from the children having had their term-time week-day residence with Father and week-end residence with Mother to having the opposite arrangement moving forward, with the commensurate order that the children change schools, in light of the 70 mile distance between the parties’ homes. The mother contends that the judge was entitled on the evidence before him to reach the decision he did and that his judgment is unimpeachable.