H (A Boy, Aged 3), Re [2025] EWFC 339 (B)

[2025] EWFC 339 (B)IN THE FAMILY COURT AT MEDWAY CASE NOIN THE MATTER OF THE CHILDREN ACT 1989AND IN THE MATTER OF H (A BOY,AGED 3)
Between
FATHERAppellantMOTHERRespondent________________________________________________________________________JUDGMENT OF RECORDER WILLIAMS________________________________________________________________________
[1]I have before me an appeal against an order permitting the Mother to relocate to a specified town in Cornwall, such order having been made by District Judge Rahman on 25 March 2025 following a two day contested hearing in private law proceedings concerning a child, H, who is age 3. I note at the outset of my judgment that I am quite sure that both parents love H immensely and only want what is best for him. Unfortunately the parents disagree about what is best for H insofar as the proposed move to a specified town in Cornwall , and therefore asked the court to decide the issue. The court is concerned with H’s welfare, and his welfare is paramount at all times. I note that H now has a younger half-sibling, and under a Child Arrangements order H lives with his mother and his mother’s partner Mr M, and he spends time with his father.[2]The appellant Father, is represented today by Mr Wells of Counsel. The respondent Mother is represented by Ms Cawthray-Stern of Counsel. Both counsel represented their clients at the contested hearing in March 2025.[3]For the record I have had sight of an up to date bundle on the morning of the appeal hearing, the majority of which papers were in the previous bundle sent to the court and which I had read. I have also read the additional documents in the bundle. I have had sight of the parties’ skeleton arguments and heard oral submissions in court from both Counsel.

Background

[4]First in time was an application made by the appellant Father (dated 21 March 2023), for child arrangements orders. Approximately eight months later, the respondent Mother, issued an application for permission to relocate with H to a specified town in Cornwall . At the hearing on 24 and 25 March 2025, District Judge Rahman made orders relating to the Father’s contact with H (on a dual basis), which orders are not being appealed. For the avoidance of doubt, it was agreed by all parties, and supported by Cafcass, that the frequency of contact between the Father and H should take place weekly (for six hours) until the Mother’s relocation, contact in effect being supported (although the Judge preferred the term “loose supervision”) by one of several agreed third parties. Contact following the proposed relocation was ordered to take place over two days (for six hours each day) during “at least one weekend per calendar month”, subject to several conditions.[5]By way of background, it is important to note that the court on 25 March 2025 was not asked to make findings regarding the history between the parties. There were previous Non-Molestation Order proceedings. At the return date on 28 March 2023, the Father admitted to some of the allegations of abusive behaviour raised by the Mother, but not all.. The court then determined that the non-molestation order should be made final.[6]There are also ongoing criminal proceedings relating to domestic abuse offences by the Father against the Mother. The Father has pleaded guilty to criminal damage and has been charged with assault occasioning actual bodily harm and sending an electronic communication with intent to cause distress or anxiety. He has pleaded not guilty in relation to the latter offences, and the matter awaits trial in March 2027. These matters were not matters for the court to make findings on at the contested hearing in March 2025 but found their way into evidence due to, as this court understands it, the Father referring to admissions as allegations and it not being clear that he accepted those matters, which was of course relevant to the court’s determination on the Child Arrangements application for contact. As I have said, the contact arrangements between the parties are by consent and not the subject of this appeal.

Permission to Appeal

[7]The appeal today relates solely to the Specific Issue Order allowing relocation to a specified town in Cornwall. That element of the order was stayed by the court on the papers on 15 May 2025. On 30 June 2025, HHJ Sullivan granted the Father permission to appeal in respect of Grounds 1-5 as set out in the Father’s Grounds of Appeal dated 14 April 2025.[8]This court must consider whether the decision made by District Judge Rahman was wrong, or unjust because of a serious procedural or other irregularity. This court notes that it did not have the benefit of hearing live evidence over two days, and that the court had the ability to exercise its discretion in making a decision. However, the use of a court’s discretion does not permit avoidance of the applicable law.

The Law

[9]In Re C [2015] EWCA Civ 1305, the Court of Appeal made clear that the principles to be applied in internal and external relocation cases are the same. It was confirmed that there is no doubt that it is the welfare principle in section 1(1) of the Children Act 1989 which dictates the result.[10]In approaching the welfare question, the court may be assisted by adopting a “balance sheet” approach:
“A welfare analysis is a requirement in any decision about a child's upbringing. The sophistication of that analysis will depend on the facts of the case. Each realistic option for the welfare of a child should be validly considered on its own internal merits (i.e. an analysis of the welfare factors relating to each option should be undertaken). That prevents one option (often in a relocation case the proposals from the absent or 'left behind' parent) from being sidelined in a linear analysis. Not only is it necessary to consider both parents' proposals on their own merits and by reference to what the child has to say but it is also necessary to consider the options side by side in a comparative evaluation. A proposal that may have some but no particular merit on its own may still be better than the only other alternative which is worse.”
Re F (International Relocation Cases) [2015] EWCA Civ 882 per Ryder LJ at [30], endorsed by McFarlane LJ at [50].[11]The applicable principles were recently and comprehensively set out in the judgment of Williams J in V v M and another [2020] EWHC 488 (Fam), in which it was confirmed that “the only authentic principle is the paramount welfare of the child”. Any proposals which interfere with the relationship between a child and his parents should be properly scrutinised.[12]The court must also consider the Article 8 rights of H and both of his parents, and in considering those rights then necessarily the court will have built into its holistic evaluation a degree of consideration of proportionality and in that way the proportionality issue feeds into the ultimate paramount welfare outcome. However, there is no requirement to undertake a separate proportionality evaluation in every relocation application (Re F).[13]Counsel for the Father refers to the suggestion of a composite checklist approach adopting useful questions from Payne v Payne in order to assist the court in its holistic evaluation of the case before it.[14]In Re C (as above), the Court of Appeal also considered the judgment in Payne v Payne [2001] EWCA Civ 166, [2001] 1 FLR 1052. The Court of Appeal’s judgment was clear that Payne remained a useful authority in that, at the Judge’s discretion, it provided a means of applying the welfare checklist so long as the approach was not too rigid.[15]In relation to the doctrine of judicial notice, it is where a fact is proven even where formal proof of it has not been called and even though that fact is in issue before the court. The court is aware of the case of Piglowska v Piglowski [1999] 1 WLR 1360 and of the dangers of adoption what has been called a “free-wheeling” approach to judicial notice, the taking as fact information from personal knowledge or based on assumptions which are not necessarily capable of being treated as general knowledge.[16]Mother’s Counsel reminds me that in Piglowska v Piglowski [1999] 2 FLR 763, HL, the House of Lords made clear that parties do not begin an appeal with a clean sheet. Lord Hoffmann stated that the appellate court must always bear in mind:(i) the advantage that the trial judge has of seeing and hearing the witnesses;(ii) that there is a discretion vested in the trial court and the appellate court should resist the temptation to substitute their own discretion for that of the trial judge on a narrow textual analysis of the judgment below; and(iii) that there must be a consideration of proportionality between the amount at stake and the legal resources to be expended.[17]In Re J (Child Returned Abroad: Convention Rights) [2005] 2 FLR 802, HL, Baroness Hale observed that “[t]oo ready an interference by the appellate court, particularly if it always seems to be in the direction of one result rather than the other, risks robbing the trial judge of the discretion entrusted to him by law”.[18]The President has reiterated that appellate courts should respect brave discretionary decisions made at first instance and must be on “secure ground” if they are to reverse the exercise of a discretion: Re W (Relocation: Removal Outside Jurisdiction) [2011] 2 FLR 409, CA.[19]All judgments, particularly ex tempore judgments, are to be read as a whole and on the assumption that the judge knew what matters had to be taken into account: Re F (Children) [2016] EWCA Civ 546.[20]I am grateful to both parties’ Counsel for setting out the law so clearly within their respective position statements for today’s hearing.

The Judgment under Appeal

[21]This court recognises the considerable pressures placed upon Judges both in terms of case load and timings. I note that the judgment was given at 5pm on day 2 of the hearing. I am told in submissions that both counsel invited the court to adjourn the decision to a further day, albeit bearing in mind the costs for the parties, and have no doubt that a reason that District Judge Rahman did not adjourn to another day may well have been because his hearing list for the days following this case would have been equally as busy as the days preceding it.[22]This court recognises the Judge’s ability to exercise his discretion in circumstances where he was asked to hear a final hearing in difficult circumstances. It cannot be disputed that the plan for relocation is to an area the Mother is not yet completely familiar with, and indeed at the date of the first CAFCASS report the Mother had not even been to the specified town in Cornwall.. By the time of the second report she had visited once. The Mother had filed a number of statements which I will detail below in terms of their exhibits, and yet there were no concrete proposals before the court. It is not for the court to run parties’ cases. The Mother has been legally represented throughout. Her solicitors are responsible for preparing her case, under her instructions, and would have known what detail the court would require for such a relocation application.[23]I cannot see that the Mother asked to adjourn the final hearing to obtain better evidence, and her proposal was as solid as it was going to be. Delay of course is generally not in a child’s best interests in any event, but I reiterate that there was no request to delay the decision for H on either issue before the court. District Judge Rahman therefore had to consider and determine the issues before him on the basis of the evidence he had. Again, it is not for the court to run the parties’ cases.

The Grounds of Appeal

[24]There are 5 grounds of appeal which are, in summary:[25]On behalf of the Mother, it is submitted that the learned judge applied the law correctly to conclude that the Mother’s application for permission to relocate should be granted, and that the appeal should therefore be dismissed.[26]The Father’s case throughout the proceedings has contained two central threads – that the Mother’s plan was poorly conceived and did not demonstrate any properly researched or evidenced benefit to H which could outweigh the advantages of a more fulsome and developed relationship with the Father (in both the short and long term); and conversely that the impact of the relocation itself would likely be harmful and/or result in a failure to meet H’s emotional needs if it went ahead due to the restrictive impact on that relationship. The Father’s case is that the appeal should be granted.[27]Both parties accepted in court that if one Ground of Appeal is successful then the appeal is granted. However, I consider each Ground of Appeal 1-5 below.[28]I do not need to concern myself with the sixth ground of appeal. The Father’s case appears to focus primarily on the fifth ground which was addressed first in court in submissions – that District Judge Rahman relied upon judicial notice to remedy the gaps in the Mother’s case and the flaws in evidence. In attempting to proceed with a hearing where the Mother’s plan was incomplete, and faced with a CAFCASS recommendation that was finely balanced and had altered seemingly on small updates, it is said that the Judge had erred in using judicial notice too much and also took judicial notice of matters which were in fact inaccurate. The Father’s case is that having taken this approach to judicial notice to remedy the gaps in the Mother’s case, the Judge then went on to apply weight inappropriately to the various strands of the Mother’s case, relying too much on some elements and not enough on others. In some ways it was a circular argument, that the gaps caused the Judge to take judicial notice, which in turn caused him to apply weight disproportionately, and which then completed the gaps in the Mother’s evidence.[29]The Mother does not agree with this. Her position is that it was entirely open to the Judge to take judicial notice as he did, and that her evidence was open and honest and she was clear with the court that she could not make concrete plans at this time. The Mother says that the court’s judicial notice was not as wide as the Father would say, and only related to properties in Cornwall being cheaper than London and to deprivation in Cornwall. The Mother’s case is that the use of judicial notice did not undermine the Judge’s welfare analysis and that the time the Judge spent in his judgment dealing with contact issues was as a result of the background of domestic abuse and the need to settle the Father’s contact arrangements. Those issues then formed the context for the Mother’s application to relocate when assessing the best interests and competing needs of H of the relocation against his time with his Father.[30]At the time of the hearing before District Judge Rahman, the Mother had prepared four witness statements for the court. As it was her application for relocation, the burden fell on the Mother to demonstrate to the court that such a move met the paramountcy principle of what is in H’s best interests. There is no court order setting out item by item what the evidence from the parties needed to include in accordance with Re C (Internal Relocation) 2015 EWCA Civ 1305, however the Mother has been represented throughout proceedings. It is noteworthy that none of the four statements made by the Mother set out in detail her plans for relocation, despite the case law, and I was told in submissions that this was intentional due to it being the Mother’s stance that she cannot make any firm plans until the court has endorsed her move. An added complication is that the intention is that not only will the Mother relocate with H, C and her partner, but also that the maternal grandparents will relocate and the maternal great grandmother too. The Mother’s case for relocation was that they would all move or none of them would move, and the Judge referred to this in his judgment. The Mother says that District Judge Rahman acted within the law and his decision was not wrong.[31]I will take each Ground of appeal in turn.[32]I have already briefly referred to the number of witness statements of the Mother amounting to four, in which she fails to set out specific details or proposals for her relocation to the specified town in Cornwall. When the Mother first made her application she had not visited the area at all, and by the time of the final hearing she had spent but one weekend there.[33]I agree with the concerns raised by the Father that much of the evidence she relies upon and attaches to her statements by way of exhibits was outdated by the time of the hearing on 24 and 25 March 2025. I do not see that the Mother can dispute this. The internet searches for nursery and primary school places show information solely gleaned from online. No enquiries were made through telephone conversations regarding whether there would be a place available for H at the nursery, and whilst the court has sympathy with the position that whether or not H would secure a school place for September 2027 is too far in the future, the Mother does not appear to have had any conversations with the schools. For example, the court might have benefitted from evidence to consider catchment areas and identifiable criteria such as class sizes and movement of children, anticipated numbers of sibling entry based on current pupils, and whether or not securing a nursery placement guarantees entry into the connected school. No such details are exhibited to her statement of 28 November 2023.[34]Similarly, the screenshots of the RightMove property searches are dated 16 October 2023, some 17 months prior to the final hearing. These give a generic snapshot of what is available but do not go into detail in relation to the properties. The Mother has not provided any evidence of discussion with prospective landlords or estate agents and in any event her primary position is that they would live with family before privately renting themselves. There is no detail of property searches for appropriately sized properties which would allow the mother, her partner, H and his brother C, the maternal grandparents and the maternal great grandmother to all live together (even if that was only the short term plan). The property details the Mother provides do give a brief overview as a comparator in rental costs save that there is no comparison exercise conducted with similar property costs being demonstrated where the Mother currently lives, only an assertion as to what she currently pays where she lives and what her property is like. The Mother has not conducted a search within her current area to assist the court.[35]The air quality data produced by the Mother is again outdated, with no indicator as to conditions over a number of days or time period or a season, or at different times of the year. The accuracy of the data cannot be verified.[36]The letter from the Consultant was dated 14 November 2023. The medical records for H are not disputed and he has clearly experienced the documented difficulties. However, there is no expert appointed to give an opinion as to H’s medical needs, and whether or not a move to the specified town in Cornwall would assist him with those particular needs. A short letter from the Consultant, albeit helpful in giving a limited view, cannot be determinative in the absence of court approved instructions and a report which could have been challenged if required. The Father in his statements makes the point that there are many other things which would contribute to better air quality for H and be beneficial for his respiratory health, and this was not fully explored within the doctor’s report or the hearing. No application was made to the court by the Mother for an expert, and whilst I accept that she did not understand any of the medical issues to be disputed, if she wished to rely on medical evidence as a basis for relocation then this evidence should have been placed before the court on an appropriate footing in compliance with the rules.[37]The crime reports exhibited by the Mother did not trouble the court. It is not clear from the Mother’s exhibits which area was designated by the “Crime in Current Area” page, as opposed to Crime in the specified town in Cornwall. All in all, the exhibits from the Mother’s statements are lacking in depth and clarity and lead to more questions than answers.[38]In the absence of properly informed arguments in support of her application, the Mother placed the court in an impossible situation. District Judge Rahman dealt with this at paragraphs 42 and 43 of his judgment where he acknowledges that a lot of things would have to fall into line for the move to the specified town in Cornwall to be effective. However, he does not refuse the application on the basis of the lack of a clear, well-reasoned and thought-out plan. In the circumstances, it was wrong of District Judge Rahman to attempt to fill in the gaps when the evidential basis was not there to do so. I find this ground of appeal must succeed.[39]This leads on to the unfortunate conclusion that District Judge Rahman was forced to reach, that this permitted relocation might not take place. The Mother argues that the Judge in expressing this view, did not undermine his conclusion that the relocation, if it happens, would be in the best interests of the child. It is said that the Mother’s application was for permission to relocate with H to a specified town in Cornwall , and the court has not ordered that the relocation must happen, as there is always a period of time after permission is granted in which intervening events might arise so as to make the relocation unfeasible or less attractive. However, in my view in expressing this view that the move might not go ahead, it echoes the previous concerns raised that many things need to fall into place to allow the relocation to happen and as such I am of the view that the reason the move may not happen is because the plans were extremely limited, with barely any detail, and contingent upon factors outside of the Mother’s control for which the court cannot dictate. In every case of relocation there may of course be factors which change circumstances. However, in this particular case, on the evidence before the court, there was greater reason to believe the move might not go ahead and that was because the plan was not realistic and not well thought out. A move cannot be considered to be in the best interests of a child if the proposed move is not realistic, well planned and researched and carefully scrutinised by the court. I find this ground of appeal must succeed.[40]The Judge was entitled to assess what weight should be applied to each factor in this case. That is of course right. However, when conducting an assessment of what is in the child’s best interests, the balancing exercise is key. The Judge noted that he had conducted a holistic approach but I echo the observations from HHJ Sullivan at the permission hearing where she noted that within the judgment, there is no reference to the welfare checklist factors, albeit the Judge did say he had weighed up pros and cons. There is very little record within the judgment of the balancing exercise required (albeit the Judge may of course have considered at length prior to giving his decision). The difficulty is that on paper, much of the judgment relates to the contact for the Father, with 18 paragraphs only at the end considering the issue of relocation.[41]I do not propose to take each of the factors pleaded within Ground 3 individually, but note the following. I have already referenced the lack of a realistic complete plan for relocation. I have already referenced the lack of proper medical evidence, when health was relied upon by the Mother as a reason for a move. I do not view the progression of contact between the Father and H as a reason for or against a relocation, as that contact should develop according to their relationship which must be maintained. Were it not for the parties having agreed contact between H and his Father both before and after any possible move, I might have made observations about added complexity of arrangements. However, the contact is agreed and the court made it plain that the Father had work to do before contact could progress. That aspect of the decision is not part of this appeal. What I will say is that I am concerned about the assessment of the evidence of CAFCASS given their original recommendation did not endorse the move, and then the balance was tipped in favour of the move seemingly on the basis that the Mother had since spent a single weekend in the specified town in Cornwall , and the quality of contact being more important that the quantity. It seems to me that the Judge should have conducted a more complete analysis of the recommendation by CAFCASS, instead of quoting a paragraph of the report, to be able to conclude in the way that he did that the quality of the time spent between father and child is more important than the quantity. The evidence the Judge relied upon by CAFCASS in his decision goes to contact, rather than the relocation, and the quotation pulled from the report and quoted in the judgment simply states the Mother’s position rather than being analysed by the court. I find that this ground of appeal must succeed.[42]Despite saying he had undertaken a holistic approach (and noting that of course the Judge may have spent considerable time thinking about the issues before giving judgment), I find that there is insufficient evidence within the ex tempore judgment of that holistic consideration. One can understand why the Father may feel aggrieved at the outcome in the absence of a more complete explanation of the thought process behind the judgment. There is very little analysis of the relocation, compared with the issue of contact. There is no mention of the Article 8 rights of child or parents in the judgment at all. The concerns set out relating to Ground 3 apply equally to Ground 4 and I find this ground of appeal must succeed.[43]It is this final ground of appeal which brings the matter back full circle to the gaps in the Mother’s evidence and her consequent unrealistic plan for relocation. Had the Mother provided the court with sufficient evidence of schooling, housing, health matters and economic status (good or bad), then District Judge Rahman would not have been put in the unenviable position of applying his discretion and taking judicial notice of matters which should have been evidence-based and set out clearly for him to consider. The difficulty with having taken judicial notice of some matters such as the affluence or otherwise of Cornwall, is that it must (on any analysis) have to be conceded that Cornwall’s economic status as a whole does not reveal the fortunes or otherwise of a particular town. The Judge erred in taking judicial notice of the county as opposed to the specified town in Cornwall in which the Mother proposed to relocate,, and in any event applied the principle of judicial notice to something factually incorrect, given the deprivation economically faced by some communities despite the wealth of a few coastal holiday locations. If the Judge had wished to take judicial notice on this point, it would have needed to be factually correct and relate specifically to the chosen location.[44]Similarly, taking judicial notice of schooling provisions, was a flawed approach in the absence of proper evidence and no comparator with the Mother’s current location. Again, taking judicial notice that housing in Cornwall is cheaper leads to all sorts of difficulties when the other necessary comparators are not provided, and the Mother’s income analysis and employment prospects are not included in the balancing exercise, either in the specified town in Cornwall or in her current location. Finally, in the absence of proper medical evidence, it was unfortunate that judicial notice was taken in relation to health matters. The Mother’s application appears to be inspired, as set out in the first CAFCASS report, by a visit from her family to Cornwall and their conclusion that their own health needs improved whilst on holiday. There may be all sorts of reasons why their health conditions improved on holiday, but the argument put forward by the Mother runs into difficulties without proper medical evidence and the court should not have taken judicial notice of something so subjective. This ground of appeal must succeed.

Conclusion

[45]I conclusion I grant the appeal on all five grounds of appeal.