Mother v Father [2025] EWFC 247

[2025] EWFC 247Case No LE22P00518Date 6/2/25
IN THE FAMILY COURT SITTING AT LEICESTER
Before
MRS JUSTICE LIEVENIN THE MATTER OF A AND B
Between
MOTHERAppellantv
Between
FATHERRespondentAPPROVED JUDGMENTThis judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.MRS JUSTICE LIEVEN
[1]This is an application by the Mother to appeal the final order made by Lay Magistrates on 17 December 2024, specifically the court's decision to make a joint lives with order, with the children spending equal time with both parents. There are two children, A a girl aged just 8, and B a boy aged 6. The matter came before me simply because I was sitting in Leicester, rather than by reason of any complexity or particular legal issue.[2]The Mother was represented by Ms Monique Sherman and the Father was represented by Mr Stuart Lewis.[3]The Mother, through her counsel, advances 14 Grounds of Appeal. This might be considered somewhat disproportionate given that the difference between the parties is whether the children should spend one week with each parent, as the Magistrates ordered; or 5 days with the Father and then 9 days with the Mother as the Mother had conceded. The Mother says that not seeing the children for 7 days has a significant impact on her emotional wellbeing and that of the children. However, it can be seen that the difference between the parties is, on any objective basis, a rather narrow one.[4]The Magistrates ordered that their order be for “shared care” whereas the Mother wanted an order that the children “live with” her and spend time with the Father. It is unusual for this issue to be such an apparently significant dispute given that most parents sharing a broadly equal relationship with their children would regard the terminology of the order as being little more than a label, and not giving rise to a significant welfare issue. Both parents have parental responsibility and the amount of time they spend with each parent will be as ordered. It is rarely in the children’s best interests for the parents to fixate upon the label that the order carries. If the children are spending roughly equal time with both parents then I cannot see why the order should not be for “shared care”, that reflects the reality of the situation. The Magistrates referred to AZ v BX (Child Arrangements[5]There is a preliminary issue about whether the appeal was brought out of time. Having considered the timing of when the decision was sent, and the relatively short delay over the holiday period, I consider it justified to extend time.[6]Ms Sherman, who represented the Mother at the hearing, but had not drafted the Grounds or Skeleton Argument, grouped the Grounds under three headings:a. Procedural irregularity – Grounds 11,12, 13 and 14;b. Lack of analysis and a failure to “consider the whole picture” – Grounds 1-7;c. The decision is “wrong” – Grounds 9 and 10.

Background

[7]The parties were in a relationship between 2015 and 2022. The Father did not have any contact with the children between July 2022 and July 2023. The Father’s application for a child arrangements order was made in August 2022. Unfortunately this case has been subject to very lengthy delays in the court system.[8]A safeguarding letter was prepared and the parties made cross-allegations of domestic abuse, with minimal admissions made, however it was advised that due to the allegations of controlling and coercive behaviour by the Father and allegations of previously hurting another child and harassment by the Father, that a determination about those issues was necessary.[9]The matter was listed for a finding of fact hearing in July 2023, however the hearing could not proceed due to the time estimate of 1 day being unrealistic. The parties had made some admissions of domestic abuse within their evidence and the court concluded at this stage that a finding of fact hearing was not necessary or proportionate. The court ordered supervised contact between the Father and the children at this stage, to be supervised by a professional service.[10]A s.7 report was prepared by Cafcass Officer, Afsana Bagwan, in November 2023. Ms Bagwan spoke with the children and with both parents. The s.7 report made the following recommendations:a. A live with order to be made in favour of the Mother;b. A spend time with order to be made in favour of the Father with stepped arrangements to full alternate weekends from Friday to Monday and one day midweek, also to include equal shared holidays and special occasion contact; andc. An order pursuant to s.91(14) of the Children Act 1989.[11]A Dispute Resolution Appointment took place on 20 November 2023. The parties were unable to reach an agreement in respect of a final order and so a final hearing was listed to consider, amongst other issues, whether there should be an order for shared care. The court directed an addendum s.7 report specifically to address the Father’s application for shared care and also listed the matter for a final hearing.[12]The addendum s.7 report was completed by Afsana Bagwan in April 2024. By this time contact had progressed to unsupervised overnight contact from Friday to Monday every other weekend. Although some of Ms Bagwan’s concerns remained, including about the Father covertly recording handovers, I note that the children were clear that they enjoyed spending time with the Father, including staying overnight. The recommendations made within this report mirrored the previous recommendations made and considered that shared care was not appropriate in this case.[13]A final hearing was listed before the court in June 2024. All parties attended this hearing, however the court had vacated the final hearing and failed to inform the parties. The parties agreed a schedule of contact, which included the children spending three weeks with the Father during the summer holidays, in a week on week off pattern.[14]A further final hearing was listed for September 2024; unfortunately Ms Bagwan was not well enough to attend the final hearing and so the matter could not proceed. The court directed a further addendum s.7 report and invited Cafcass to re-allocate the matter due to Ms Bagwan’s ill health; the matter was re-listed for a further final hearing.[15]The matter was re-allocated to a new Cafcass officer, Mr Henry, in October 2024. Mr Henry met with the children together and undertook an in-person interview with the Father and a remote interview with the Mother. The recommendations made within this report in November 2024 were as follows:a. A stepped progression to a shared care arrangement with the children spending equal time with both parents on a week on, week off basis, increasing in increments of one night per fortnight; andb. An order pursuant to s.91(14) of the Children Act 1989 is not proportionate.[16]A final hearing took place on 17 December 2024 before Lay Magistrates. The hearing proceeded by way of oral evidence from the Cafcass Officer, Mr Henry, followed by submissions from the parties. The court made the following decision at the conclusion of the hearing:a. A child arrangements order where the children shall spend equal time with each parent under a joint lives with order, with holiday arrangements and special occasions as agreed between the parties; andb. No order shall be made pursuant to s.91(14) of the Children Act 1989.[17]The Magistrates provided their reasons in writing on 7 January 2025. I will set out those reasons in full because of the numerous criticisms of them by the Mother: “Evidence of CAFCASS Officer Mr Henry We found the evidence of Mr Henry to be clear, concise and very well considered. He demonstrated a comprehensive understanding of the history of this case as well as articulating the reasoning of his recommendations in terms of the progress that these parents have made in managing the contact arrangements between each other. Mr Henry focused on the positive ongoing contact between Father and the children as per the interim arrangements ordered in November 2023. He acknowledged that the parties still need to develop on their ability to work together and co parent the children and was hopeful especially as he believed that this was evident from the summer contact between the children and their father. Mr Henry also took account of the children’s wishes and feelings to spend more time with their Father but he recognised that this needed to happen in child focused pace and in particular with regards to [B]. Under cross examination Mr Henry was of the view that Father’s conversations with Mr Henry were more child focused and sensitive to the needs of the children, demonstrating a positive change in Father’s attitude. In addition he stated that there were safeguarding issues and no concerns expressed by the school to prevent the children from spending more time with their father. Mr Henry was also agreeable with the position that it is not necessary for parents to get along with each other to successfully co parent the children and in addition he believes that these parents are able to work together in the interests of the children because the current interim arrangements have actually been working. Mr Henry stated that it is within the capability of these parents to continue to improve communication between themselves to co parent these children. Mr Henry was cross examined by Mother’s advocate that the parties have raised cross allegations of domestic abuse and this would mean that a shared care order would not be appropriate. Mr Henry responded that parents are already managing handovers and contact arrangements for the children and communicating via App. This would continue and the children would transition in to an increased pattern of contact. The most recent case regarding shared care AZ v BX (Child Arrangements

Law

[18]Family Procedure Rule (“FPR”) rule 30.12(3) provides that an appeal may be allowed where the decision was wrong or unjust for procedural irregularity.[19]In Re F (Children) [2016] EWCA Civ 546, Munby P summarised the approach of an appellate court to decisions of the lower court as follows: “22. Like any judgment, the judgment of the Deputy Judge has to be read as a whole, and having regard to its context and structure. The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable. The judge need not slavishly re-state either the facts, the arguments or the law. To adopt the striking metaphor of Mostyn J in SP v EB and KP [2014] EWHC 3964 (Fam), [2016] 1 FLR 228 para 29, there is no need for the judge to "incant mechanically" passages from the authorities, the evidence or the submissions, as if he were "a pilot going through the pre-flight checklist”.[20]The task of this court is to decide the appeal applying the principles set out in the classic speech of Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360. I confine myself to one short passage (at 1372):
"The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better ex-pressed. This is particularly true of an unreserved judgment such as the judge gave in this case. These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2) [of the Matrimonial Causes Act 1973]. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself."
[21]On appeal the court will only intervene on a determination of fact if that determination was plainly not open to the Judge on the evidence before him/her; or failed to give any weight to what was clearly a relevant issue; or gave an irrational amount of weight to an irrelevant issue.[22]Where there is a proposed challenge to the exercise of a discretion the correct approach of the appellate court was set out by the House of Lords in G v G (Minors: Custody Appeal) [1985] FLR 894. The appellate court should only intervene if it is satisfied that the judged exercised his/her discretion on a wrong principle, or the decision was so plainly wrong that s/he must have exercised the discretion wrongly.[23]What is therefore required before the applicant can successfully appeal the decision of the Judge is a decision which is ‘wrong’ and exceeds what is a generous discretion given to judges deciding these complicated cases with a number of possible outcomes. Indeed, Lord Frazer in G v G also says:
“The jurisdiction in such cases is one of great difficulty, as every judge who has to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory. It is comparatively seldom that the Court of Appeal, even if it would itself have preferred a different answer, can say that the judge’s decision is wrong, and unless it can say so, it will leave his decision undisturbed.”
[24]The overriding objective in FPR rule 1.1 applies as much to the appeal process as to other applications under the FPR and I must therefore seek to determine this application justly but also proportionately.[25]I note that there is no requirement for permission to appeal from a decision of the Magistrates’ and no ability therefore to certify the appeal as being totally without merit. I find this surprising given that a significant number of appeals from district judges and circuit judges are certified by the appellate court as being totally without merit. I will draw this possible lacunae in the Family Procedure Rules to the Rules Committee.[26]Sir James Munby P in Re TG (Care Proceedings Case Management Expert Evidence) [2013] 1 FLR 1250 at [24-38] sets out the principles to be applied in appeals relating to case management decisions. Although this was a final decision, many of the matters challenged, such as how much cross examination to allow, were in truth case management type decisions. Sir James said at [35]:
“35.(4) Fourth, the Court of Appeal has recently re-emphasised the importance of supporting first-instance judges who make robust but fair case-management decisions: Deripaska v Cherney [2012] EWCA Civ 1235 , paras [17], [30], and Stokors SA v IG Markets Ltd [2012] EWCA Civ 1706, paras [25], [45], [46]. Of course, the Court of Appeal must and will intervene when it is proper to do so. However, it must be understood that in the case of appeals from case management decisions the circumstances in which it can interfere are limited. The Court of Appeal can interfere only if satisfied that the judge erred in principle, took into account irrelevant matters, failed to take into account relevant matters, or came to a decision so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge: Royal & Sun Alliance Insurance plc v T & N Limited [2002] EWCA Civ 1964 , paras [37]-[38], [47], Walbrook Trustee (Jersey) Ltd v Fattal [2008] EWCA Civ 427 , para [33], and Stokors SA v IG Markets Ltd [2012] EWCA Civ 1706 , para [46]. This is not a question of judicial comity; there are sound pragmatic reasons for this approach….”
[27]In Re B (a child) [2013] UKSC 33 the Supreme Court considered the historic test of ‘plainly wrong’ and they held unanimously that the question in every appeal was simply whether the judge was wrong, taking into account the realm of discretion that a judge has.[28]Other legal principles relevant to the circumstances of this case are as follows:[29]The importance of the role of Cafcass has been emphasised in Re W (residence) [1999] 3 FCR 274:
“Judges are hugely dependent upon the contribution that can be made by the welfare officer, who has the opportunity to visit the home and to see the grown-ups and the children in much less artificial circumstances than the judge can ever do.”
[30]FPR 2010 27.2(3) sets out that the Lay Justices “must” give written reasons for their decisions. FPR 2010 27.2(7) and (8) also confirm that, when announcing their decision the Lay Justices must also provide “reasons for that decision or a short explanation of the decision” and that the court officer will supply a copy of the order and the reasons for the court decision to the parties “by close of business on the day when the court announces its decision; or where that time is not practicable and the proceedings are on notice, no later than 72 hours from the time when the court announced its decision.”[31]The Mother relies upon PD12J dealing with allegations of domestic abuse in family proceedings. She has referred me to:a. Paragraph 3 sets out that the definitions of “coercive behaviour” and “controlling behaviour”, in accordance with the Domestic Abuse Act 2021, is: “an act or a pattern of acts of assault, threats, humiliation or intimidation or other abuse that is used to harm, punish or frighten the victim” and “an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour” respectively;b. Paragraph 36 confirms that “in light of any findings of fact, admissions, or domestic abuse having otherwise been established, the court should apply the individual matters in the welfare checklist with reference to the domestic abuse which has occurred and any expert risk assessment obtained…the court should in every case consider any harm: which the child as a victim of domestic abuse, and the parent with whom the child is living, has suffered as a consequence of that domestic abuse, and which the child and the parent with whom the child is living is at risk of suffering, if a child arrangements order is made,” and “The court should make an order for contact only if it is satisfied: that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before, during and after contact, and that the parent with whom the child is living will not be subjected to further domestic abuse by the other parent;”c. Paragraph 37 also confirms that “In every case where a finding or admission of domestic abuse is made, or where domestic abuse is otherwise established, the court should consider the conduct of both parents towards each other and towards the child and the impact of the same. In particular, the court should consider – i. the effect of the domestic abuse on the child and on the arrangements for where the child is living; ii. the effect of the domestic abuse on the child and its effect on the child’s relationship with the parents; iii. whether the parent is motivated by a desire to promote the best interests of the child or is using the process to continue a form of domestic abuse against the other parent; iv. the likely behaviour during contact of the parent against whom findings are made and its effect on the child; and v. the capacity of the parents to appreciate the effect of past domestic abuse and the potential for future domestic abuse.[32]The Mother also refers to Cafcass Domestic Abuse Practice Policy published in early October 2024. This Policy has now been withdrawn and a new policy promulgated. In any event, this is policy for Cafcass, not the Courts, and its relevance for consideration by the Courts must therefore be very limited. Guidance is not law, and the law in this field is set out by the Court of Appeal in K v K [2022] EWCA Civ 468, and that case, rather than any guidance, is binding on the Court, including the Magistrates.[33]The Magistrates in their reasons referred to the case of AZ v BX (Child Arrangements[34]The Mother also relies on certain cases concerning domestic abuse. For the reasons set out below, I consider these to have limited relevance to the issues before the Magistrates and before this court. In F v M [2021] EWFC 4Hayden J expressed the following view in respect of allegations of coercive and controlling behaviour within family proceedings:
“Understanding the scope and ambit of [coercive and controlling behaviour], however, requires a recognition that ‘coercion’ will usually involve a pattern of acts encompassing, for example, assault, intimidation, humiliation and threats. ‘Controlling behaviour’ really involves a range of acts designed to render an individual subordinate and to corrode their sense of personal autonomy. Key to both behaviours is an appreciation of a ‘pattern’ or ‘a series of acts’, the impact of which must be assessed cumulatively and rarely in isolation”
[35]In Re H-N and Others (Children)(domestic abuse: finding of fact hearings)[2021] EWCA Civ 448, the court echoed the sentiments expressed by Hayden J in F v M above, confirming that by reducing a long complicated history of coercive and controlling behaviour into neat and discrete descriptions, may result in the minimisation of abuse. However, that is a very long way from the facts of this case, where a high level of contact had been agreed to be in the children’s best interests.[36]InSD v AFH and another [2019] EWHC 1513 (Fam), the court confirmed that:
“the line between behaviour which can properly be characterised as coercive or controlling and behaviour which does not cross that threshold is not a bright line”
.

Grounds of Appeal

[37]I will deal with the Grounds in the three tranches set out by Ms Sherman. Firstly are Grounds 11, 12, 13 and 14. All of which relate to alleged procedural irregularities. 38. Ground 11:
“The court failed to provide the parties with any facts and reasons when delivering their decision both during the hearing and when the order was sent out after it had been sealed, despite facts and reasons having been requested by the parties. The court only sent facts and reasons to the parties after this was requested by solicitors for the mother (having ignored a further request by counsel for the mother when the order was filed with the court) and provide the mother with any opportunity to seek clarification on the order made or consider prospects of an appeal within the statutory timescale for appeal.”
[38]Ground 11 appears to be in two parts;(a) that the Magistrates did not give their reasons at the hearing and(b) that the reasons were too short. In my view both elements are entirely without merit.[39]FPR r27.2 states “After a hearing, the court will make its decision as soon as is practicable. Under r27.2(3) the Court must give written reasons[40]As is set out in the caselaw above, it is essential to interpret these duties with an understanding of the realities of courtroom life, particularly in the area of the Family Justice System. The hearing was on 17 December 2024 and the reasons were promulgated on 7 January, with Christmas and the New Year intervening. Given that there were counsel on both sides, there was nothing unreasonable about the Magistrates reserving their reasons and giving them a few days later.[41]In respect to the extent of the reasons, the scope of the duty is as set out in Re F. The reasons explain, quite clearly, why the Bench ordered a week on and week off arrangement.[42]Although the slight delay did cause an issue with the Mother being able to appeal within time, that has been remedied by extending time.[43]This Ground of appeal has no merit. The reasons were given within a reasonable time. 45. Ground 12:
“The legal adviser erred in her conduct during the oral evidence of the Cafcass Officer by asking questions in respect of case law, which had not been provided to the parties in advance of it being raised, in a way which was biased towards the position of the father.”
[44]In the skeleton argument it is said that the Legal Advisor failed to frame her questions in a “neutral way”. It is submitted that the Legal Advisor “overstepped her role” and this was a “serious procedural irregularity”.[45]This Ground is wholly misconceived. The Legal Advisor, and the Magistrates, are entitled to ask questions as they see fit. It is not being suggested that the questions asked were wholly irrelevant, or improper in the strict meaning of the word. The allegation is that they were “biased” towards the Father. But what that really means is that the Legal Advisor may have seen little merit in some of the points being made by the Mother and thought it appropriate to test what was being said. That is entirely appropriate. It is an important part of the task of any court to test what is being said, and to focus on the issues that are important to the decision. There will be cases, particularly where one party is a litigant in person, where the court has to take on an inquisitorial role. That is entirely appropriate.[46]To the degree the issue is with the conduct of the Legal Advisor per se, then it was for the Magistrates to intervene if they felt the questions were unhelpful to them.[47]As the Court of Appeal set out in K v K, it is critical in cases such as this, to focus on what is relevant to the children’s best interests, and not to be diverted, as is too often the case, into the disputes between the parents. That may lead one party to feel that the questions are supporting the other party, but that is not evidence of bias, it is much more likely to be evidence of the Legal Advisor and Magistrates attempting to get the parties to focus on the real issues. That was certainly the case here.[48]The Mother complains that a copy of the caselaw referred to by the Legal Advisor was not given to the parties in advance. I am told that Ms Parker, on behalf of the Mother, did not ask for a short adjournment to look up this caselaw as she could have done. It is a sadly familiar situation in the Family Court for parties to refer to caselaw that no one has provided. Indeed in this appeal Ms Sherman referred to AX but did not provide the court with a copy, nor include it in any bundle. If a party, or the Court, feels that it needs to do so, the appropriate course is to ask for a short adjournment and look at the caselaw. In the days of smartphones and the internet this is extremely easy to do.[49]I asked Ms Sherman if there was any caselaw in support of the proposition that a judge, Magistrate or Legal Advisor could not refer to caselaw unless it had been provided to the parties in advance. Unsurprisingly there is no such authority.[50]In my view this Ground is hopeless, and I would have certified it as being totally without merit if I had the power to do so.

Ground 13

[51]This Ground is part of a theme in the Grounds that the decision gave insufficient weight to the Mother’s allegations of domestic abuse and to PD12J. I will deal with this below, under Ground 1.[52]The second tranche of Grounds relate to an alleged lack of analysis and consideration of “the whole picture”. 55. Ground 1:
“The court did not give adequate weight to PD12J and the fact that the mother is a victim of domestic abuse and how this order would impact the mother, and therefore the children, particularly given the father’s continued behaviour of recording the mother during handovers and the content of messages sent in July and October;”
[53]The Mother submits that the Magistrates reasons fail to address the fact that admissions had been made in respect of domestic abuse and that therefore it was relevant to their determination of the issues.[54]The Grounds of Appeal and Skeleton Argument fail to appreciate and acknowledge that the actual dispute was now about 5 days or 7 days with the Father. The issues about domestic abuse, that may have been highly relevant at the start of the proceedings, had little relevance in my view to the decision the Magistrates had to make. It may well be that the Mother still felt that the issues were highly pertinent to her, but as has been said in K v K, and follows from the terms of the Children Act 1989, the Magistrates had to focus on the best interests of the children.[55]Ms Sherman submitted that the Mother found not seeing the children for 7 consecutive nights very hard, and it impacted on her emotional wellbeing. That in turn impacted on the children’s best interests. The argument seemed to be that the Magistrates failed to consider PD12J properly in the light of this alleged impact on the children’s best interests.[56]The first point to make is that the Magistrates did have regard to PD12J, to which they make clear reference in their reasons.[57]Secondly, the Magistrates, as with all Family Court judges, will necessarily be extremely familiar with PD12J and the importance of considering domestic abuse. The issue arises in a high proportion of Family Court cases and PD12J is cited in almost all those cases. As is set out in the caselaw it is not necessary to give ritual incantation of PD12J.[58]Thirdly, in my view, it was well within the scope of the Magistrates’ judgement here to consider that the consequences of domestic abuse, whether conceded or alleged, were not central to their determination of the outstanding issues in this case. Both parents had raised domestic abuse and a decision was made that no fact finding was necessary. There had been no challenge to that decision. The contact with Father had developed to the point of agreement by the Mother that the children should spend 5 consecutive nights with the Father. Therefore, at the most the Magistrates were being asked to consider the incremental impact on the Mother, and through her the children, of two additional nights. I quite accept that the Mother will miss the children for those additional nights. But there was no evidence that the impact on the Mother was such to have a material impact on the children’s wellbeing or best interests. It seems to me that the argument before the Magistrates, and certainly before me, is much more about the Mother’s wishes and feelings than actually relating to domestic abuse, or the children’s best interests. In my view this is a case where domestic abuse and PD12J is being used as a litigation tool rather than it actually relating to the issue to be determined, i.e. 5 or 7 nights with the Father.[59]For these reasons there is no merit in this Ground or Ground 13. 63. Ground 2:
“The court was wrong in their approach and understanding of domestic abuse when questioning counsel for the mother during cross-examination of the Cafcass Officer, on what specific incidents have occurred (or specific messages have been sent) that the mother alleges are abusive since the father sent messages of an abusive nature in July 2024, despite the fact that some of the continued allegations raised by the mother were in respect of intimidation, manipulation, coercive control and control of her parenting which cannot properly be outlined in reference to specific incidents;”
[60]This complaint appears to be an amalgam of Grounds 1 and 12 - that the Magistrates and the Legal Advisor asked the wrong questions. The conduct of the hearing was a matter for them. It appears that the focus of this Ground is that the Mother’s counsel did not agree with the approach of the Magistrates, which was that accounts of domestic abuse that had taken place earlier, whether conceded or not were of very little relevance to the matters they had to decide. Their approach entirely accorded with the binding authority of the Court of Appeal in K v K, that the court should only consider matters that impacted on the welfare of the child. In circumstances where the children were having extensive contact with the Father, the Magistrates and Legal Advisors approach was entirely correct.[61]To the degree that the Mother was saying that the Father continue to be abusive towards her, the issue for the Magistrates was how relevant was this for the additional 2 days in issue. The reality of this case is that there was no evidence that this alleged abuse was relevant to the matters before the Bench. 66. Ground 3:
“When delivering their decision during the hearing, the court stated that “the only matter they needed to focus on was what time the children spend with each parent.”
This is wrong, given that the court needed to consider both what time the children spend with each parent and whether the court should make a joint live with order or an order that the children live with the mother and spend time with the father. The court’s determination was clearly flawed and did not properly address all of the issues;”[62]The Magistrates and Legal Advisor were plainly very well aware that they were being asked to decide whether there should be a “joint lives with” order. But central to their decision was the amount of time spent with each parent. That decision was plainly going to be highly material to their determination of the label of the order. There is no evidence that they misunderstood the issues that were before them. 68. Ground 4:
“The court failed to consider the full extent of the oral evidence of the Cafcass Officer, Paul Henry, particularly those points that did not support the recommendations that he made, including: a) accepting that the parties were not in a place at this stage where (in accordance with both expert reports) they were required to be for shared care to work and be effective for the children; b) accepting that the father had already been notified for over 12 months in respect of the inappropriate nature of recording handover and that this was intimidating for the mother, whilst there was involvement of the court and another Cafcass Officer, but the father’s behaviour has not changed; c) that the children may never get to a shared care arrangement in respect of time and 3, 4 or 5 nights may be enough for them; d) that he should have met with the mother in person, particularly given the concerns raised and the mother reporting feeling controlled and intimidated by father covertly recording handovers; e) that he should have completed a victim impact analysis on the mother within his report.”
[63]This in effect a complaint that the Magistrates did not accept the Mother’s case and did not fully record in their reasons the cross-examination of the Cafcass Officer. As is set out above, reasons do not have to record all the evidence. The reasons set out explain why the Magistrates made the decision they did, it does not need to set out the detail of the evidence and what they did or did not accept. The question on the appeal is whether the decision was plainly “wrong”. The reasons could have been fuller, but the fact that all these issues were not recorded does not vitiate the decision.[64]Importantly, the decision was one for the Magistrates and not the Cafcass Officer. Even if Mr Henry said in cross examination that the parties were not yet at the stage when shared care would necessarily work, that was a decision for the Magistrates to make on the basis of all the evidence and the submissions made to them.[65]This Ground fails. 72. Ground 5:
“The court have relied on the contents of a flawed addendum section 7 report on the following basis: a) There is no consideration at all within the report of PD12J or the admissions of domestic abuse made by the parties; b) There is no victim impact analysis of the mother and in turn how any change to the arrangements would therefore impact upon the children; c) There is no analysis at all of the concerns raised by the mother in respect of coercive and controlling communication from the father, particularly given the previous Cafcass Officer’s views in respect of the communication sent by the father to the mother; d) There is no analysis of the fact that the father is still covertly recording handovers, despite it having been communicated to him on numerous occasions by the previous court adviser and the mother’s solicitors that this was inappropriate, and no analysis of the impact if this were to continue or whether the father is able to change his behaviour; e) The comparison between spending 7 nights with the father in summer against spending 7 nights with the father in term-time is a superficial analysis of how the children would be impacted by a change of circumstances; f) The recommendations within the report are based on the position that a shared care arrangement could “potentially work”; and g) The Cafcass Officer accepted that he should have met with the mother in person for the purposes of preparing his report.”
[66]This Ground is misconceived. The Magistrates had before them three s.7 reports, which recorded the changing position for these children over nearly 18 months. The s.7 report does not have to cover every point, and even if there were “flaws” within it, that does not lead to any arguable appeal against the Magistrates decision.[67]The fundamental problem in the Mother’s case is exposed by paragraph (e) – the comparison between 5 nights and 7 nights is not a “superficial analysis”, it is what the case was actually about. It was for the Magistrates to weigh up the evidence and submissions, including the Mother’s case about ongoing coercive control through communications by the Father, and reach their conclusions.[68]None of the points made in this Ground lead to a conclusion that the decision was even arguably “wrong”. 76. Ground 6:
“The court was wrong to accept the Cafcass Officer’s views in respect of whether share care could work. The Cafcass Officer’s views during his oral evidence involved being “hopeful” that things would work, “hopeful” that the parents would be able to progress their communication to a place where shared care could work (despite not having done so thus far during proceedings) and being “hopeful” that the father would take on board how the mother is feeling and the inappropriate nature of covertly recording handover as they were being said in front of the court at the final hearing (despite the father’s behaviour not having changed throughout proceedings after discussions with the previous Cafcass Officer and the mother’s solicitors). The court was wrong to accept hope as the foundation for shared care being able to work and should have focused on the current circumstances for the children and the parties;”
[69]This Ground is no more than a disagreement with the Magistrates’ decision. The Cafcass Office expressed himself in cautious terms, and it was for the Magistrates to exercise their judgement as to the children’s best interests. Family Courts very often have to make judgements about what may happen in the future, including “hoping” for a particular outcome. In this case the progression of contact so far gave a rational basis for such “hope”. Ground 7: 78. The court’s decision to give little weight to the reports of Afsana Bagwan was wrong given her lengthy involvement with the case and her substantial analysis. The court erred by giving little weight to these reports for the following reasons: a). The section 7 report and addendum section 7 report included the only consideration of PD12J and the impact on the children throughout the entire assessment period and so the court gave little weight or consideration to an important factor of this case, which is alleged to have continued since it was determined that a finding of fact hearing was no longer required; b). The court has failed to properly analyse the suggested changes between the addendum report of Afsana Bagwan and the addendum report of Paul Henry, in light of the significant departure in recommendations; c). Afsana Bagwan was involved with the family for around 12 months, whereas Paul Henry had only been involved with the family for around 1 month when having written his report – the court were wrong to ignore the significance and value of Ms Bagwan’s interpretation and understanding of this case; d). The court’s view that the reports of Ms Bagwan are historical is wrong. Afsana Bagwan’s last report was filed on 22 April 2024 and the court was willing to rely on that report when the final hearing was previously listed in both June 2024 and September 2024; e). The court’s determination that the reports of Afsana Bagwan are outdated given the case law raised by the legal adviser is incorrect. The case law cited by the legal adviser did not change or raise any new principles of law, it simply reiterated the legal principles in respect of shared care and so the legal basis of Ms Bagwan’s reports remained in line with the current legal framework.”[70]It was open to the Magistrates to decide on how much weight to put on Ms Bagwan’s reports. Importantly, these reports related to a time before the children had been spending as much time with the Father and therefore were necessarily out of date. This Ground shows, again, a lack of realism. The reports were “historic” because the last report was dated April 2024 and the children’s contact with their father had moved on significantly since then.[71]Mr Henry’s report and recommendations necessarily carried significantly more weight because it was up to date, and considered the children’s wishes and feelings after the time they had spent with the father over the summer holidays.[72]This Ground has no merit.[73]The third aspect of challenge is that the decision was “wrong” – Grounds 9 and 10. 88. Ground 9:
“The court have given very little consideration to the extensive cross-examination of the Cafcass Officer by counsel for the mother and effectively, within the facts and reasons, reduced this down to one sole point, whether the cross-allegations of domestic abuse mean that shared care is not appropriate (which is not an accurate reflection of the content of the cross-examination by counsel for the mother). The court was wrong not to give consideration within their facts and reasons to the other aspects of cross-examination by counsel for the mother and the Cafcass Officer’s responses to that and seemingly were wrong in their evaluation of the content of that cross-examination;”
[74]This appears to be a repeat of Ground 4, that the Magistrates failed to give sufficient weight to the evidence of Mr Henry. The weight given to the evidence was a matter for the Magistrates. 90. Ground 10:
“The court’s evaluation of the welfare checklist is poorly considered and must be wrong, on the following grounds: a) When the court considers part a) of the welfare checklist, it does not accurately reflect what the children’s reported wishes and feelings actually were within the report (particularly given [B]’s anxieties) and does not give any analysis in respect of why the children were seen together (rather than separately as they had been previously) and whether, in light of their ages, how much weight their wishes and feelings should carry; b) The court’s view at c) of the welfare checklist is wrong in “expecting the parents to positively manage the transition to shared care, week on week off” given the oral evidence of the Cafcass Officer that the children may never get to a shared care arrangement and that 3, 4 or 5 nights may be enough for them; and c) At parts e) and f) of the welfare checklist, the court fails to consider the risk to the children by the father continuing to covertly record the mother at handovers and of impact that this has had and will have on the children, given the impact on the mother.”
[75]This Ground seeks to turn the reasons into an examination paper with each section being subject to close scrutiny. The children had said they wished to spend more time with their father. As always more could have been said, but the caselaw is clear that that does not vitiate the decision.[76]Yet again this Ground does not reflect the reality that the children were having 5 days contact as agreed. It is not possible to understand why the Father’s covert recording, which I would like to make clear is not acceptable, was any greater barrier to 7 days contact than to 5. There is a fundamental illogicality running through this, and many of the other Grounds.[77]This Ground has no merit.

Ground 7:

[78]The appeal is dismissed.

Order

Appeal) [2024] EWHC 1528 (Fam), where reference was made on the facts of the case to the terminology of the order being important. However, on the facts of this case it is very difficult to see why what the order was called made any difference to the welfare interests of the children. Order: Appeal) [2024] EWHC 1528 (Fam). In particular the principles highlighted in this case were as follows:• Mr Justice Poole reminded himself of the comments of P Jackson LJ in LvF [2017] EWCA Civ 2121 that “there was a time when the orthodox view was that shared care should not be ordered where the parental relationship is bad…but authorities show that there is no longer a principle to this effect.”• Just because there is acrimony between parents it does not necessarily mean a shared lived with order will be unsuitable.• A shared lives with order would encourage the parents to work together on an equal footing rather than the one parent being in the driving seat. A shared lives with order would regularise their equal standing in relation to each other which would be more conducive to working relations.• In every case the appropriate choice of order depends on a full evaluation of all the circumstances with the child’s welfare being the court’s paramount consideration. Findings We have considered practice direction 12J. Both parties allege domestic abuse against each other. A previous Bench determined that a fact finding hearing was neither necessary nor proportionate as the nature and severity of all of the allegations was not sufficient as to have an impact on the time that the children would spend with each parent. At the hearing on 17 July 2023 CAFCASS have advised that there were no safeguarding issues in respect of the children spending time with their Father nor any welfare risks relating to contact. We agree with that decision and have neither heard today to persuade us to reconsider the issues of domestic abuse. The court has read the CAFCASS Section 7 Report prepared by Ms Bhagwan 2 November 2023 and the Addendum S7 by Ms Bhagwan written on the 22 April 2024. These were included in our Bundle. We give them little weight because they are historical and there have been changes in circumstances since they were written. In particular the children have spent a week at a time with their Father in the summer holidays. Ms Bhagwan’s report also pre dates case law guidance in relation to the circumstances when a shared care order can or should made. In addition, Ms Bhagwan’s reports have not been tested under cross examination. Her long term leave of absence is exactly why the court ordered a further Addendum to be completed by another CAFCASS officer who was allocated to this family. Statutes We have considered the welfare checklist in the Children Act and feel that the following factors are relevant: a) The ascertainable wishes and feelings of the children concerned (considered in the light of their age and understanding) The children have recently expressed to the Mr Henry that they would like to spend more time with their Father. All parties agree on the principle that there should be more contact between the children and their father. b) Their physical, emotional and educational needs These are currently being met. c) Likely effect on them of any change in their circumstances The transition plan proposed by CAFCASS Officer Mr Henry would allow the contact arrangements to increase at a pace in line with children, especially [B]. The court expect the parents to positively manage the transition to shared care, week on week off. d) Their age, sex, background and any characteristics that the court considers relevant [B] is a 5 year old White British boy and [A] is a 7 year old White British girl. e) Any harm which they have suffered or are at risk of suffering The parents are encouraged to remain cognisant of their communication with each other mitigated by the App in order to safeguard the children from future risk of being caught up in acrimony. f) How capable each of their parents, and any other person in relation to whom the court considers the question relevant, is of meeting their needs. Both parents are capable in meeting the needs of the children and the children have expressed and been observed to enjoy spending time with both of their parents. g) The range of powers available to the court We have considered our range of powers which are to make no order or a Child Arrangements order. An order is necessary in this case because these parents have been unable to agree and they require structure and a framework to work from to manage the arrangements for their children. These children require stability and certainty in their arrangements to allow them to build a meaningful relationship with both of their parents. Human Rights We have considered the Human Rights aspects of this case and in particular Articles 6 and 8 of the European Convention on Human rights. The Children Act 1989 gives us the power to intervene in family life and in this case, we are satisfied that it is necessary and proportionate to do so because the children’s stability requires it. Order and Decision. In reaching our decision we have treated the welfare of [B] and [A] as our paramount consideration. We found Mr Henry’s recommendations to be sensible, proportionate and persuasive. He was in tune with the wishes and feelings of the children and we agree with him that there should be a shared care order with a transition in line with his recommendations to allow both children to adjust to the new arrangements and agree the increments of 1 day each fortnight. We have decided to make a shared care order with the children spending alternate weeks with each parent. The handovers for term time arrangements to be at school. With regards to the 91 (14) order, we do not consider this to be necessary nor proportionate. We recognise and accept that Father has since stated that he would abide by any order the court makes.” Findings Statutes Human Rights Law Order: Appeal) [2024] EWHC 1528 (Fam), the court reiterated the dicta from L v F [2017] EWCA Civ 2121and confirmed the following principles: i) The choice of whether to make a shared lives with order or a lives with/spend time with order is not merely a question of labelling – it is likely to be relevant to the welfare of the subject children and must be made by applying the principles of CA 1989 s1. In some cases where, for example, an unmarried father does not have parental responsibility, a shared lives with order will result in him having parental responsibility whereas a lives with/spend time with order (the children living with the mother) will not. That is a material difference to take into account, although it did not apply in the present case. In every case the appropriate choice of order depends on a full evaluation of all the circumstances with the child's welfare being the court's paramount consideration. ii) The choice of the form of any lives with order should be considered alongside the division of time and any other parts of the proposed child arrangements order. iii) A shared lives with order may be suitable not only when there is to be an equal division of time with each parent but also when there is to be an unequal division of time. iv) It does not necessarily follow from the fact that the parents are antagonistic or unsupportive of each other that a shared lives with order will be unsuitable.