![FA-2025-000247 - [2025] EWHC 2437 (Fam)](https://backend.juristeca.com/files/emisores/logo_0FrGysm.png){kind=logo}
Ground 1
Ground 1
With respect to Ground 1, at paragraph [12] of his judgment, the Recorder was careful to place his evaluation of the FCA’s evidence in the following legal context:
“[12] There is expert evidence in this case, expert evidence from Cafcass, and their job is to provide an opinion and to provide advice to the court, albeit specialist advice. The court’s job is different. It is the court that has to decide the case. The expert does not decide the case. And here, whilst I have expert advice and it is important advice, it is just that, advice, and the onus is on me to decide the case and I may reject some or all of the recommendations of an expert if I feel I have good reason to do so and needless to say it will be apparent because of the judgment I have already announced that I have chosen to do so in this case.”
Having set out this context, the Recorder summarised clearly in his judgment the written evidence, contained in the main and addendum s.7 reports, and the oral evidence of the FCA that he considered salient. In particular:
In light of the mother’s unilateral decision to relocate, the FCA had stated “it was a concern as to whether mother can facilitate contact with the father but when she looked at it she felt that the mother had since then reflected on the impact of her unannounced decision to relocate upon the children.”
The FCA gave evidence that “J considers mother’s house to be home and that J had said she would like to live with mother, and that when pushed agreed that she would like to spend time with father and she specifically said two days including overnight. J said her father can upset or make her sad at times and she also said she wanted to go to [the Y county school]” (in this context, it is noteworthy that the transcript of the hearing demonstrates that the FCA conceded in cross examination that there were many repeated tearful references to J missing her Mother, that J’s position had not changed since last September and she would prefer if the arrangements were effectively reversed, that J continued to miss her Mother throughout the week and not just on transition days and that the CPOMS records reflected that J was quite sad).
At the time of the FCA’s first report she was of the view that “L said he would like to live with the mother ‘all the time’ and he thought father got an unfair amount of time compared to mother. He also said he wanted to go to [the Y county school].”
The FCA’s view was that the impact of adult conflict on the wishes and feelings of the children, “has led to the wishes and feelings expressed by the children and there was a risk that the emotional dysregulation would be compounded if their wishes and feelings were not respected.”
With respect to the consequences of not following the wishes and feelings of the children, the Recorder noted that the view of the FCA was in particular that “if the wishes and feelings were not followed in this case it could impact how they relate to the father in the future and their behaviour with each parent, their presentation at the school, the thought that their views lacked value, and that have not therefore been listened to.”
The FCA had received evidence from the school that the children missed both parents depending on who they had been staying with, missing the parent they had not been with.
The FCA had given oral evidence that “L had alleged that he had been thrown to the floor by the father and that J supported that complaint.” The FCA stated that J had also reported “father throwing L to the floor and said some negative things about the father”. The FCA had stated in evidence that “Whilst I am of the view that the children’s interactions with the father did not reflect this, they clearly had some concerns and if [the father] dismisses this then this could impact upon their emotional wellbeing and subsequently his relationship with them as they grow.”
The FCA agreed in oral evidence that “the CPOMS documentation contained frequent entries that J was missing mother and only one or two accounts about missing dad” but that the FCA stated she had “taken a holistic view which took into account amongst other things her observations of the children being contented in father’s care.”
The FCA gave evidence that “there were issues surrounding the children being able to have additional telephone access to mother outside of the Wednesday ordered phone calls. The FCA “said this has only taken place twice and could be indicative of father’s inability to facilitate contact with the mother.”
The FCA “had taken into account the wishes and feelings of the children but thought that these were outweighed by other welfare factors such as their positive relationship with father, the changes they have already experienced including their parents’ breakup, the unannounced relocation, the stability their current school provides, their existing relationship with their father, and the familiarities of the current arrangement” and “there is the fact that the children do have a relationship with the mother even under the existing arrangements.”
The FCA “favoured the children staying with the father because of the changes already experienced, the stability within the current school, and the availability of the mother for a relationship with the children at weekends” and that “it is really the familiarities that the children experience in the current arrangements including the school that she thought were important to enable consistency for them.”
Having regard to role of the court as the final arbiter of the welfare outcome of a case and the evidence heard and analysed by the Recorder, I am satisfied that the judgment of the Recorder cannot be said to have failed “to give any good reasons” for departing from the FCA’s conclusion that the children should reside with their father during the week and with their mother three weekends out of four with a midweek overnight contact with the mother during the week the children did not spend the weekend with her.
I pause to note at this stage that the Recorder made a finding in respect of one of the matters raised in the evidence of the FCA, namely that there were issues surrounding the children being able to have additional telephone access to mother outside of the Wednesday ordered phone calls the extent to which the father. In the context of the father’s evidence that he had not prevented the children from phoning, and said if the children asked he would facilitate such a call, the Recorder found to the contrary as follows:
“[48]... I say that I have found that I accept his evidence on almost all respects but in one regard I believe that given the evidence from Cafcass, mother and the children, on the balance of probabilities father has not, as he said he had, facilitated the additional phone calls between the children. And so, on that basis I do not accept father’s evidence and I find that there is more than sufficient evidence on the contrary to find against him on that.”
In summarising the evidence of the FCA as set out above the Recorder had expresslyforeshadowed in his judgment part of his reasoning for departing from her conclusions as to what was in the children’s best interests:
“[27] Miss Shaw agreed that the disadvantages that she had initially identified regarding the mother in her first section 7 report had largely disappeared for mother whereas for father they do remain. And that is important for when I come to explaining my judgment because my position is that things have changed somewhat since Miss Shaw conducted her investigation.”
Later in his judgment, the Recorder further articulated the reasons he relied on for not following the recommendation of the FCA, beginning with his overall assessment of the FCA’s evidence:
“[46] Turning to my assessment of the evidence, looking first at Ms Shaw, the Cafcass Officer, I intend there to be no contradiction in what I say here about my view of Ms Shaw and my departure from her conclusion because I found Ms Shaw to be an impressive professional witness who had conducted the necessary enquiries and she expressed a coherent view in support of her recommendations. It is just the case that I disagree that that coherent view is the most appropriate for resolving the welfare interests of the children. But it is a coherent view, it is not an incoherent view.
[47] I commended her of course for the short timeframe in which she produced the additional report and I take that into account. I also take into account the fact that she was given a limited brief for conducting that report, so it is necessarily a limited report. But, as I say, I decided to depart from the recommendation that she made because I have this different view and therefore I reject her assessment concerning the welfare of the children and I will say why in due course.”
The Recorder goes on in detail to “say why” he took a different view from the FCA in paragraphs 69 to 78 of the judgment, which set out the following reasons for the Recorder differing from the recommendation made by the FCA:
Since the recommendation of the FCA that the children should live with both their mother and father but without relocation, meaning that the children would stay with their father during the week and with their mother at the weekend, was arrived at there had been a number of changes with respect to the matters the FCA had taken into account:
Both parents had moved house.
The children were a little older and their wishes and feelings with respect to where they wished to live, namely with the mother, had solidified.
The concerns raised by the father regarding mental health issues and substance misuse on the part of the mother were no longer pursued.
The children were more familiar with Y county.
The mother’s uncertainty about whether the mother could locate employment that would permit her to spend more time with the children had been resolved.
The FCA had concluded that the father was supportive of the children’s relationship with their mother but the Recorder had found this not to be the case in circumstances where the father had not promoted additional contact by way of telephone calls, contrary to his evidence that he had done so.
The court placed more weight than the FCA on the disadvantage identified by the FCA, namely the children living with their father did not align with their wishes and feelings in circumstances where their wishes and feelings with respect to where they wished to live had solidified.
The court placed more weight than the FCA on the further disadvantage identified by the FCA of the children living with their father, namely that the children had expressed the view that the father is “mean” and can become angry.
The court placed more weight than the FCA on her evidence as to the negative consequences of the children’s views not being listened to, which could impact how they relate to the father in the future and their behaviour with each parent, their presentation at the school and lead to them thinking that their views lacked value.
The FCA had not evaluated the CPOMS evidence as part of the judgment section of her report, which the Recorder was satisfied was an omission.
The FCA had recommended an additional weekend for the father, further reducing the children’s time with their mother and further departing from the children’s clearly expressed wishes and feelings, and suggested what the Recorder was satisfied was a unworkable midweek overnight contact with the mother during the week the children did not spend the weekend with her in the context of the mother living some 70 miles from the school the children attended in X county.
The court took a different view on the evidence from the FCA regarding the impact on the children of the current arrangements, particularly having regard to the CPOM reports dealing with J’s statements, which included that she was sad living with her father, that she counts down the days until she sees her mother and that her father will not permit her to make telephone calls to her mother save for Wednesdays, which makes her sad.
In circumstances where the children already lived in two locations and had familiarity with both, the Recorder considered he could give more weight to the children’s wishes and feelings than the FCA had felt able to.
Having regard to the evidence before the court, the Recorder’s assessment of that evidence and the findings he made, none of which are the subject of appeal, the reasons given by the Recorder for departing from the recommendation of the FCA are plainly clear and adequate. They are grounded in the material that was before the court and Recorder’s evaluation of that material, including the reports and oral evidence given by the FCA. Further, they concentrate on aspects of the evidence and welfare evaluation that are centrally relevant to question of where the children should live during the school week and concentrate on the welfare factors examined by the FCA that the court was required to consider and determine. Finally, they articulate in clear terms why the Recorder arrived at a different welfare evaluation on the evidence to that advanced by the FCA in her two reports and oral evidence.
I acknowledge that an element of the first ground of appeal is the assertion that the Recorder was guilty of drawing unsustainable and irrational inferences regarding Ms Shaw’s consideration of the updated CPOMS and the weight to be attached to his finding that the Father did not support additional indirect contact with Mother. These grounds are dealt with in detail in Ms Stacey’s Skeleton Argument. I am not, however, satisfied that either of these assertions is sustainable.
With respect to the CPOMS, the records were plainly relevant material to the evaluation of the children’s welfare. The Recorder had previously admitted the material and adjourned the proceedings in order to permit the FCA to consider the CPOMS records and provide an addendum report. The judge was entitled to take into account the fact that FCA had not dealt with the CPOMS in the ‘judgment’ section of her report when determining whether to depart from her recommendation. Further, the contents of the CPOMS were available to the judge, who was entitled to draw his own conclusions from their contents when undertaking his welfare evaluation and plainly did so. Where the judge concluded that this exercise demonstrated that the FCA had not sufficiently analysed the CPOMS and that the CPOMS supported a different conclusion to that reached by the FCA, the Recorder was entitled to rely on those matters in deciding to depart from the recommendation of the FCA.
With respect to the weight to be attached to his finding that the father did not support additional indirect contact with mother, as I have noted the judge made a specific finding that, on the balance of probabilities, the father had not facilitated the additional phone calls between the children and the mother, rejecting the father’s evidence that he had done so. That finding has not been appealed by the father, and therefore stands. When the Recorder came to articulate his reasons for departing from the recommendation of the FCA, he clearly set out the role of the finding he had made in his decision to depart from that recommendation. Namely that the FCA had concluded that the father was supportive of the children’s relationship with their mother but the Recorder had found this not to be the case having regard to his not having promoted additional contact.
Having made the finding that he did regarding the father’s failure to promote additional indirect contact (which was grounded in evidence that included the CPOM recording that J “says her dad won’t let her call her mum, only on a Wednesday, and that makes her sad”), a finding the father does not seek to appeal, the Recorder was entitled to rely on that finding as reason for departing from the FCA’s recommendation, in circumstances where it stood in opposition to the conclusions reached by the FCA. I cannot therefore accept Ms Stacey’s submission that in taking this course the Recorder adopted an approach that went “far beyond the reasonable scope of the judge’s reasonable discretion” and comprised “a wholly irrational basis” on which to discount the FCA’s recommendation.
In the circumstances, I am satisfied that there is no proper basis for contending that the Recorder erred in rejecting the advice of the FCA that it would be in the children’s best interests to remain living with the Father during weekdays and Mother during weekends. In particular, Ms Stacey’s submission that the Recorder “gave little or no reasoned justifications for departing from” the recommendations of the FCA is simply unsustainable in the circumstances set out above.
As he was required to do, the Recorder considered and evaluated the evidence, including the recommendations of the FCA, against the welfare checklist in s.1 of the Children Act 1989 and determined the outcome that best met the welfare needs of the children, having regard to their best interests as his paramount consideration. In circumstances where his decision differed from the recommendation of the FCA, the Recorder explained his reasons for departing from that recommendation. Having regard to those reasons, there is no basis for arguing that the Recorder’s treatment of the FCA’s recommendation was wrong, procedurally irregular or was an exercise of discretion that exceeded the generous ambit within which a reasonable disagreement is possible. I reject Ms Stacey’s submission that the Recorder had no good reason nor rational basis for departing from the recommendation of the FCA. I deprecate in particular, as wholly unsupported by any evidence, the submission that the Recorder had predetermined his approach to the evidence of the FCA and was casting around after the fact to justify the position he had assumed.