C v D [2025] EWFC 428 (B)

[2025] EWFC 428 (B)
IN THE FAMILY COURT AT CARDIFF
Venue Cardiff Civil and Family Justice Centre, 2 Park Street Cardiff CF10 1ET
Before
HER HONOUR JUDGE SCANNELL
Between
CAPPELLANTDRESPONDENTLegal RepresentationMr William Seagrim (Counsel) for AppellantMs Kathryn Taylor (Counsel) for RespondentOther Parties Present and their statusNone knownJudgmentJudgment date: 29 May 2025Transcribed from 14:08:13 until 14:41:54Reporting Restrictions Applied: Yes“This 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 judgement the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.”“This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.”Number of folios in transcript 74 Number of words in transcript 5,299Her Honour Judge Scannell:Date 2025-05-29
[1]The mother in this case seeks to appeal against a decision of Lay Justices at a hearing which took place on 21 February 2025. The respondent to the appeal is the father. The dispute between the parents which the Magistrates determined in February was in respect of which of 2 competing schools their daughter aged 4 should attend from September 2025. Both schools are in Wales and a short distance from each other and each parent’s home.[2]Importantly the case has been managed within the framework prescribed by Practise Direction 36Z Family Procedure Rules more usually referred to as the Pathfinder Model. The hearing was a Decision Hearing with Tribunal led conciliation intended to assist the parties to reach agreement on disputed issues followed by, if unsuccessful, a final decision on any unresolved issues.[3]The case management order which directed the Decision Hearing makes clear to the parties that it was intended to be a final hearing. Notwtithstanding that both parties knew such was the purpose of the hearing, on 19th February Mother lodged a C2 application for a Child Arrangements Order seeking significant changes to the time the child spent with each of her parents and order prescribing that the child lived with her. the school should be adjourned so that all applications could be determined together.[4]The application to adjourn was dismissed. The Justices also dismissed the Child Arrangements Order application, and then went on to rule that the child should attend the school that father had chosen.[5]The Appellant’s notice was filed on 14 March 2025. Standard directions were given to ensure that appropriate documents were filed alongside an appeal bundle. I heard the appeal on 8th April. The law[6]Before considering the substance of the appeal I have reminded myself of the legal principles which must underpin my decision making. R30.12(3) FPR provides that an appeal will be allowed where the decision of the Court below is wrong, or unjust because of serious procedural or other irregularity in the lower court.[7]An Appellate Court may conclude a decision is wrong or procedurally flawed where there has been an error of law, where the tribunal has failed to give due weight to some very significant matter, or, by contrast, where undue weight has been given to some matter not deserving of it.[8]A decision may be wrong if founded on facts not properly established by reliable evidence, or if the approach adopted by the Court below which is procedurally flawed and/or unfair to the extent that it renders the decision unjust. Finally, the appeal may succeed if any discretion exercised has gone outside that which the Court has jurisdiction to exercise.[9]I remind myself, that the function of the Appellate Court is to determine whether the judgment of the Court below is sustainable. In that respect I have considered Re F (Children) [2016] EWCA 546, when Munby P, summarised the approach to be taken as follows:
“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 restate 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) . . . paragraph 29, there is no need for the judge to incant mechanically passages from the authorities, the evidence or the submissions, as if he were [that] . . . pilot going through the pre flight checklist.”
[10]Further in determining the appeal, I also apply the well-established principles within the judgment of Lord Hoffmann in Piglowska v Piglowski[1999] 1 WLR 1360:
“The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. 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 to the contrary, the judge knew how he should perform his functions and which matters he should take into account.”
[11]His Lordship then said:
“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 . . . he misdirected himself. It is not the function of an Appellate Court to strive by tortuous mental gymnastics to find error in the decision under review when, in truth, there has been none. The concern of the Court ought to be substance not semantics. To adopt Lord Hoffmann’s phrase, ‘the Court must be wary of becoming embroiled in narrow textual analysis.”
[12]I have also considered two further authorities relied upon by mother to inform my approach to her appeal. In considering whether the Lay Justices could be said to have been wrong, I was referred to the judgment of Dame Siobhan Keegan in Re H-W in which she said:
“In Re B Lord Neuberger at paragraph 93 essayed a further dissection of the process of deciding whether a judge’s decision was wrong. He cautiously prefaced his suggested breakdown of the possible states of mind of an appellate judge with the observation . . . there was danger in over analysis. With hindsight, that was a prophetic observation, as this Court held in the subsequent case of R v Chief Constable of Greater Manchester Police [2018] UKSC 47 . . . Lord Carnwath, giving the judgment of the Court, said this at paragraph 63, ‘with hindsight, and with great respect, I think Lord Neuberger’s warning about the danger of over analysis was well made. The passage risks adding an unnecessary layer of complication . . . [and] it seems to focus too much attention on the subjective view of the appellate judges and their degrees of certainty or doubt, rather than on an objective view of the nature and materiality of any perceived error in the reasoning of the trial judge.”
[13]Mother also drew my attention to the judgment of Baker LJ in Re A, B and C (Child Arrangements: Final Order at Dispute Resolution Appointment) [2025] EWCA Civ 55 in particular his summary of the Court’s power to bring proceedings to an end if satisfied such a course is consistent with the welfare of the children Essential background[14]Having reminded myself of those important principles I now summarise the essential background.[15]The Appellant and Respondent are the parents of the subject child. Father has parental responsibility as the parents were married in 2019. The parents are currently involved in divorce and financial proceedings which are yet to be resolved.[16]The child lived with both parents for the first two and a half years of her life, until they separated in May 2023. When Mother moved out of the family home it was agreed that the child should spend equal amounts of time with each parent. An alternating pattern of five, five, two and two days was established. Until two days before the final hearing there was no suggestion that her welfare needs required any change to that arrangement.[17]It is also of relevance I find the child benefits from a loving relationship with grandparents on both sides, all of whom are very involved in her life. As in many families the grandparents provide support to enable both parents to work, Mother in a primary school being self-employed.[18]Also of importance this child has already attended a preschool nursery from the age of nine months which has allowed the parents to work. The Appeal Ground 1[19]I now turn to the substance of the appeal. Ground 1 is that the decision to dismiss Mother’s C2 application, dated 18 February, by which she sought a Child Arrangements Order, was wrong and/or unjust because of a serious procedural irregularity in that the application that Mother made was dismissed without any, or any proper consideration by the Lower Court.[20]The thrust of the submissions made on behalf of Mother in this respect is that there was a summary dismissal of Mother’s application. Whilst the order is accepted to be one the lay justices had the power to make it is submitted this was not a proper determination in these circumstances.[21]In support of that submission Mr Seagrim emphasised that mother’s application represented the first time the Court had been asked to make a Child Arrangements Order. Whilst Mother did not seek extensive change of the day to day arrangements for the child, I note that her application also included a request that there be an order that the child live with Mother.[22]His overarching submission is that the reasons are insufficient to sustain the decision that was made. It is submitted that they do not explain the decision reached, and that a summary determination and dismissal require more by way of reasoning. He also relies upon the absence of any reference to authorities relevant to the determination that the Justices made.[23]The Respondent submits that the Court was entitled to take the steps that were taken, that the application had been made late with little notice and that the Court’s case management powers, considered alongside the overriding objective, led to the clear conclusion that the Court was entitled to reach their decision it should be dismissed.[24]The Respondent further submits that the approach Mother took in making her application were not consistent with the Pathfinder model and that in issuing it at such a late stage she undermined the aims of expediting proceedings and focusing on the real issues in the case.[25]The Father also contended that it was not proportionate to litigate the application when there was no evidence of any real welfare issue that needed determination. In that respect the Respondent relied upon the Child Impact Report which confirmed there were no welfare issues in respect of this child.[26]Insofar as there are criticisms of the reasons, the Respondent invites the Court not to approach them too critically, acknowledging that they are slender reasons, but asserting that alone cannot lead to a conclusion that the Justices were wrong.[27]The Father further submitted that the Court should conclude there was a focus on the section 1(3) Children Act issues, the status quo, the prevailing circumstances, the nature of the application and the effect of change, that the Justices had done enough to satisfy the obligations upon them, and for their decision to be understood.[28]I find as follows. The Justices’ reasons are available to the Court, as are key documents. Those documents make clear that Mother was entirely silent in her evidence about any concerns she may have had in respect of the shared care arrangements, or indeed that she had any desire to change it. In addition it is clear that during her discussions with the author of the Child Impact Report she made no comment about changing the arrangements, nor that she thought they no longer met the child’s needs. In addition, it is accepted that Mother’s statement filed in advance of the hearing does not touch on any concerns about Father’s care.[29]The Magistrates had all those matters in mind I find because they say so in their reasons. It is also clear from the reasons that they had the welfare checklist firmly in mind. The status quo was addressed in connection with the issue of the C2. They noted that the change contended for was just one day per week, and they explicitly refer to the absence of any suggestion of welfare or safeguarding concerns.[30]Whilst I accept the reasons are relatively brief, and could perhaps be structured differently, the paragraph that deals with the application sets out their reasoning clearly. They are reasons which identify why there was no good reason that further investigation of the issue was necessary before determination. In my judgment I do not find that they were wrong to take that course of action.[31]Regarding the absence of reference to relevant authority it is not clear that they were assisted by counsel at the hearing. Counsel before me for the purpose of this appeal were not present. It is a criticism I do not hold against the Magistrate in those circumstances. In any event the tenor of the relevant paragraph makes clear that they had firmly in mind the issue of whether any further consideration of the application was required, and, therefore, they met the guidance set out in Re A, B and C.[32]The Lay Justices made clear they saw no reason to investigate further, and were satisfied that the child’s welfare needs were met by resolving the application summarily. It was a decision in line with the careful exercise of their case management powers, made with reference to what the Justices considered to be in the child’s welfare interests, and cannot be said in my judgment to be unjust or wrong. As a result I conclude that Ground 1 of the appeal is not made out.[33]The submission made on behalf of Father regarding the extent to which the application did not meet the aims of Pathfinder, are submissions well made, but not in my judgment directly relevant to the ground relied on. This case does however identify matters of relevance to the operation of Pathfinder, which I intend to deal with under a separate heading at the conclusion of the judgment. Ground 2[34]Ground 2 is that the decision to refuse to adjourn the Decision Hearing was wrong or unjust because of a serious procedural irregularity, in that the determination of the child’s living arrangements would clearly have had a fundamental and profound impact upon the resolution of the identification of the child’s school and should take precedence over the resolution of the identification of that school.[35]The skeleton argument filed on behalf of Mother in respect of Ground 2 is strongly worded in stating: “Patently where a child lives shall dictate the school at which the child should attend,” the submission being that as a consequence it was incumbent on the Lower Court to determine the live issue of living arrangements.[36]It is further submitted that the Justices fell into error when they concluded:
“We’re of the view that the decision of where the child goes to school is separate.”
[37]The written submissions in respect of Ground 2 were not drafted by Mr Seagrim, who has not pressed this ground, but it is important nonetheless to deal with it.[38]The Appellant’s case is that there were factual issues linked to geography of the parents’ respective homes, and the two respective schools, that made the issue of where she was going to be living of significance. That submission however in my judgment is flawed.[39]I agree with the submission made on behalf of Father, that it is not the case that residence will necessarily determine the issue in respect of school attendance, either as a general principle or on the facts of this case. Any contested application involving education will require consideration of which school meets the needs of the child. That however cannot be determined by geography alone if there are other more pressing welfare issues.[40]In addition, on the facts of this case the distance between the homes of the parents and the respective schools was very similar, as was travel time. In that regard Mother said in her witness statement, prepared for the Decision Hearing:
“the child’s nursery is further than (mother’s) school is from both of our homes, and therefore I do not agree that the convenience of location is relevant. Whilst I acknowledge that (Mother’s)School is slightly further away from both of our homes, it is still only seven minutes drive away.”
[41]Mother’s case had been that the choice of school should not be driven by the convenience of the parents. The written submissions made therefore on Mother’s behalf appear to be entirely at odds with her case in the Lower Court. I therefore reject the submission that the issue of residence should have been dealt with first. The Lay Justices were not wrong in the approach they took.[42]Both schools were fully accessible to this child, irrespective of where she lived. The Justices’ reference within a number of paragraphs in their reasons to the practical arrangements show they were clearly alive to this issue, which was also dealt with appropriately in the context of the welfare checklist. The decision they took was within the generous ambit of discretion they had to deal with this matter.[43]I also reject the submission that the Magistrates’ decision not to adjourn was driven by reasons of expediency, and that as Mother submitted:
“Justice was sacrificed on the altar of speed.”
The submission suggests the Magistrates were more concerned with concluding matters than they were in meeting the child’s welfare needs. There is nothing within the reasons that suggest that was the case, and I reject the submission. It is clear they saw no benefit to the child in investigating matters further and that delay was therefore likely to be harmful to her.[44]Insofar as the reasons record that they considered it was in the child’s best interests to conclude matters, that is entirely consistent with the welfare principles enshrined in section 1 of the Children Act, and they cannot be said to have fallen into error in that respect. For all those reasons I find that Ground 2 has not been made out. Ground 3[45]Ground 3 is that the Court, in deciding to make a Specific Issue Order that the child attend Father’s School, was wrong for a number of reasons; firstly because the Court failed to adequately consider the welfare benefit of the child of starting at a school with other children with whom she is familiar; secondly because whilst the Justices concluded that Father’s School is in the village where the child grew up and close to all parties there was a failure to consider adequately, or at all, that the child’s needs were less likely to be met by being educated at a school with “plaza style” learning spaces. Finally, it is submitted the Court also failed to consider adequately, or at all, the likely effect on the child of a change in her circumstances, by failing to address the practical arrangements allied to her attending that school.[46]In this respect I agree with the submission on behalf of Mother, that the issue of whether the Justices fell into error, or were wrong in choosing Father’s School, is a question of whether appropriate weight was given to the relevant facts.[47]I begin by noting the Lay Justices were clearly cognisant of all of the relevant issues and facts, because each element of the concerns held by the parents is clearly referred to in their reasons, when considering the welfare checklist.[48]The rationale for their decision is contained in paragraph 3 of the decision section. It is clear they considered issues raised by Mother around collection and return to be matters of convenience for her, which they concluded were secondary to issues relevant to the needs of the child. They make that observation plainly. It is noticeable in that respect that the issue of drop off and collection was not specifically referred to in Mother’s statement, nor in her conversation with the author of the Child Impact Report. It appears to have been a matter introduced by her for the first time during the hearing.[49]There is some criticism on behalf of Mother that the reasons do not explicitly deal with the issues around collection and return. In my judgment, when read as a whole, the reasons make clear they have considered that matter as one not relevant to the child’s welfare. They explicitly set out the issue when referring to the effect of any change upon the child.[50]What is also clear is that the Lay Justices were aware that the issue of Mother’s future residence was uncertain, and concluded therefore that stability of education could be achieved by attendance at a school in a village where Father and both sets of grandparents, (and indeed Mother) currently live.[51]The Lay Justices make the point in their reasons that there is nothing to choose between each school in terms of what it offers, and, in those circumstances, preferred that which offered stability and the proximity of Father and two sets of grandparents, which they clearly viewed as something not likely to change.[52]They also specifically refer to Mother’s concern about the plaza style environment and the child’s sensitivity to loud noise, but it is clear from the documentation available to me that there is very little evidence about this. What is clear is that the child has managed a preschool nursery environment, and also Rainbows, an after-school club that precedes Brownies. It is clear also that there is no formal diagnosis underpinning any sensitivity, and that whilst the child has ear defenders their use appears to be for noisy events such as fireworks displays.[53]The reasons make clear that, in the circumstances, the Magistrates considered that neither of those factors were of greater significance in the welfare determination they made. In my judgment that was an exercise of discretion they were entitled to make on the evidence before them.[54]The submission is made on Mother’s behalf that they could and should have dealt with the balancing exercise more expressly. I accept that the exercise undertaken could have been set out in a more structured way, but in my judgment that is more a question of form than substance.[55]The exercise the Justices undertook can be understood from the reasons they have given as a whole, and I conclude that their discretion cannot be said to have been exercised wrongly. It cannot be said that they gave inappropriate weight to the matters that influenced their conclusion.[56]Ground 3 is therefore not made out. As a result, the appeal fails and must be dismissed. Practice points[57]I finally turn to the practice issues which arise. As I said in a previous judgment, I do so to try to assist those who do not currently practise in a pilot area, as well as those that do. My observations are made only with reference to this Court’s expectation in relation to the operation of Pathfinder within South East Wales.[58]It is essential to the proper implementation of PD 36Z that every party properly identifies the welfare case they wish to put before the Court at the earliest opportunity, and preferably before they make any application to the Court. To fail to do so risks undermining the ability of the parties and the Court to comply with the overriding objective.[59]Any other approach also impacts on what is meant to be achieved through the MIAM process. MIAMs are a crucial step aimed at helping the parties to achieve an out of court resolution of their difficulties. They are not simply a tick box exercise to achieve access to the court. A MIAM cannot possibly achieve its aim if the parties have not laid their cards on the table, having thought properly about what they consider to be the best arrangements for their child.[60]Failing to identify all welfare issues at the outset also undermines the aims of Pathfinder in important ways. The new procedure offers the parties the opportunity to adopt a problem solving approach which begins with the preparation of the Child Impact Report. When it is safe to do so the author of that report will apply problem solving methodology to assist the parties to resolve matters before the conclusions of the report are written. This cannot be done effectively and in a timely manner if the range of issues that are ultimately put before the Court are not identified at the outset.[61]Pathfinder also offers the parties a clearly defined process which in most cases in this area leads to a conclusion of proceedings at the first hearing which takes place about 2 weeks after the Child Impact Report is prepared. The process is meant to offer the parties certainty following a timely determination avoiding all the stress and anxiety that comes with protracted court proceedings. There will always be cases where circumstances require that the timetable has to be revisited and even extended but it is not in any parties’ interests for that to happen solely because a party has not properly considered at the outset all the welfare issues they wish to be considered by the court.[62]Finally, it is worth saying that Pathfinder is meant to be a process which engenders cooperation and enables the parties to recognise that alternative methods of dispute resolution are less harmful and therefore better for family relationships than the court’s determination. It aims to offer the parties the opportunity to learn how to reach agreement on contested matters and without resort to the Court.[63]A late application which has not been anticipated, and which entirely changes the face of the dispute is in my judgment, likely to damage the prospect of those objectives being achieved.[64]Insofar as applications in this area are concerned, I therefore encourage all parties to identify any welfare issues and disputed arrangements at the commencement of the case, and to make the Court aware of them in the originating application or the acknowledgement form.[65]If unforeseen circumstances arise which means that a different application is necessary, that must be made at the earliest opportunity to allow the Court to consider the consequences that arise, make appropriate case management directions and mitigate any consequent delay.[66]In addition, statements filed must be carefully drafted, to contain all the relevant. Evidence must be put before the Court in that form and not emerge during oral submissions when it is unlikely to carry any proper weight.[67]Those practice points in my judgment will serve both to further the overriding objective and assist the Court and parties to achieve the core aims of Pathfinder approach to achieving best outcomes for children. This Transcript has been approved by the Judge. The Transcription Agency hereby certifies that the above is an accurate and complete recording of the proceedings or part thereof. The Transcription Agency, 24-28 High Street, Hythe, Kent, CT21 5AT Tel: 01303 230038 Email: court@thetranscriptionagency.com