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

I am likewise satisfied that a proper reading of the judgment does not bear out the assertion that the Recorder failed to give a balanced analysis of the children’s expressions of wishes and feelings. It is equally unsustainable to assert that the Recorder failed to consider the expressions of wish reported properly and in context of the case as a whole by not considering the impact of the children’s respective ages on the weight that could properly be attributed to them, failing to make any finding in relation to the allegation by father that mother was influencing the children’s wishes and failing to weigh in the balance the clear evidence of the impact of parental conflict on the weight that could properly be attributed to them.

The judgment records that both children had written letters to the court expressing a wish to live with the mother. As set out above, the Recorder further recorded in his judgment what the children had said to the FCA. When dealing with the evidence he had heard, the Recorder also set out clearly in his judgment the FCA’s views on a number of matters relevant to the assessment and weighing of the children’s wishes and feelings. In particular, he identified the view of the FCA that, although the children appeared to have a fondness for their mother more than their father and appeared to suggest this in terms of favouring the mother, their interaction with the father did not support that view. The Recorder also expressly referred, I am satisfied accurately, to the FCA’s view of the impact on the children if their wishes and feelings were not respected in this case, namely that there was a risk that “the children’s emotional dysregulation would be compounded if their wishes and feelings were not respected” and that:

“[21] In particular, Ms Shaw identified 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.”

Whilst the father asserts as an element of his second ground of appeal that the Recorder failed to make any finding in relation to the allegation by Father that Mother was influencing the children’s wishes, when evaluating the evidence of the father the Recorder expressly considered and rejected the father’s assertion that the children’s views were not genuinely held and made a specific finding, which again is not the subject of an appeal:

“[48] I found his evidence to be comprehensive and truthful and sincere in almost all respects, although I did think he seemed oblivious to the wishes and feelings of the children on the issue before the court, although I accept of course that his case is that these are not genuinely held views of these children, but I find against that, I find that these are the genuinely held views of the children.”

Within the foregoing context, when undertaking his welfare analysis, when dealing with the children’s wishes and feelings and in the context of his un-appealed finding that their expressed wishes and feelings were the genuinely held views of the children, the Recorder gave careful thought to the children’s respective age and understanding, the consistency of their views and the weight to be accorded to each child’s views in the welfare analysis:

“[51] Turning to the welfare analysis, I follow the checklist as I mentioned earlier and the ascertainable wishes and feelings of the children come first in that checklist. They are very important in this case. We have got young children in the sense of being six and eight but they are old enough in my view, especially in J’s case, to express coherent and considered views as to where they would like to live. They clearly both love father and they both enjoy being in his care most of the time. However they, and particularly J, have expressed a clear preference to live with mum and attend [the Y county] school. They have also expressed some negative views of their father. And the views of the children have been consistent during this litigation and I consider them to be settled and clear.

[52] There views were first expressed to the Cafcass Officer during the section 7 investigations and we can see that they are repeated throughout the CPOMS documentation. I also note that they are opinions and wishes and feelings that are ventured on largely existing circumstances, not on purely hypothetical or unknown future situations. Therefore I give them added weight as a result of that.”

Viewed in the context of the Recorder having given his judgment ex tempore at the conclusion of the hearing, and placed in the context of the judgment as a whole, I am satisfied that the Recorder conducted a balanced analysis of the children’s wishes and feelings, including an evaluation of the impact of the children’s respective ages on the weight that could properly be attributed to them, having expressly considered and rejected the father’s assertion that the children’s views were not genuinely held, and having evaluated the children’s wishes and feelings as having been consistently expressed throughout litigation spawned by the parental conflict.

Whilst the father asserts that the Recorder failed to weigh in the balance the evidence of the impact of parental conflict on the weight that could properly be attributed to them, such an omission does not emerge from the judgment, which must be considered as a whole.

It is clear from the judgment that the judge was acutely aware of the impact of the children of parental acrimony at the time he undertook his analysis of their wishes and feelings. There is no basis to suggest that he failed to account for that context (which will be present in the vast majority of contested cases coming before a family judge) in reaching his conclusions. Accordingly, I cannot accept Ms Stacey’s submission that the Recorder “failed properly to consider the impact of parental conflict on the children’s expressions of wish” and hence “made it impossible to properly adjudge whether the expressions of wish were in fact rational and based upon a real emotional understanding by the children or whether they were formed arising from the harm to which they had been exposed as a result of mutual parental acrimony” (such a neat and clear cut distinction being inherently unlikely in any event).

Finally, Ground 2 asserts that the Recorder placed “arguably decisive weight” on the children’s wishes and feelings. Whilst the Recorder stated in terms in his judgment that the children’s wishes and feelings were very important, nowhere did he state he was treating them as determinative. The fact that the Recorder did not treat the children’s wishes and feelings as determinative is demonstrated by the other factors expressly relied on by the Recorder as underpinning the conclusion of his welfare analysis when the judgment is read as a whole.

These included, on the Recorders assessment of the evidence, access to extra-curricular activities at the Y county school in the context of their educational needs; the fact that the change contemplated for the children was one of different timings and not different locations; the children’s proven ability to adapt to a change of school; their wishes and feelings regarding schooling being expressed in the context of having knowledge of the Y county school; the ability to walk to school from mother’s property; the prospect of a further housing change if they remained with father; the mother being better placed to ensure the socialisation of the children; the finding that the father had not adequately provided for additional indirect contact to take place; and the mother being in a better position to support the education and health needs of the children during the week. In this context, whilst Ms Stacey relies on Re S (A Child) [2009] EWCA Civ 445, [2010] 1 FLR 509 to submit that “neither child was old enough at the relevant time for their wishes to be given determinative weight”, that is not what the judge did in this case.

In the circumstances, with respect to Ground 2, I reject the contention that the judge erred by placing inappropriate, arguably decisive, weight on the children’s wishes and feelings in undertaking his evaluation of the welfare criteria.