Y v E (Reasons for Departing from Cafcass Recommendation) [2025] EWHC 2437 (Fam)

[2025] EWHC 2437 (Fam)Case No FA-2025-000247
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
ON APPEAL FROM RECORDER CLAPHAM
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30/09/2025
Before
MR JUSTICE MACDONALD
Between
YAppellantERespondent
Ms Harriet Stacey (instructed by Hayman Solicitors) for AppellantMs Cliona Papazian (instructed by Slater Heelis) for RespondentHearing Hearing dates: 5 September 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 30 September 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.MR JUSTICE MACDONALD
[1]In this matter I am concerned with an appeal against the order of Recorder Clapham dated 22 July 2025, concerning the welfare of J, aged 8, and L, now aged 7. By his order of that date, and against the recommendations of the Cafcass Family Court Adviser (hereafter “the FCA”) the learned Recorder made, inter alia, the following[2]The father of the children, Y, sought permission to appeal at the conclusion of the hearing, which application was refused by the Recorder. The father’s previous counsel thereafter confirmed to the Recorder by an email dated 24 July 2025 that the father did not intend to make any further application for permission to appeal. As a result of this confirmation, the children were told of the new arrangements with respect to their living arrangements mandated by the order and, in consequence, their schooling.[3]Notwithstanding the indication that no further application for permission to appeal would be lodged, and the children being told of their new arrangements in light of that position, the father subsequently lodged a Notice of Appeal on 11 August 2025. The father is represented on this appeal by Ms Harriet Stacey of counsel. The appeal is opposed by the mother of the children, E. The mother is represented by Ms Cliona Papazian of counsel.[4]On 27 August 2025, permission to appeal the order of 22 July 2025 was granted on the papers by Trowell J, who thereafter also granted a stay of the Recorder’s order. The appeal hearing was expedited in circumstances where the outcome of the appeal impacts on not only the living arrangements for the children but also which school the children commence at the start of the imminent autumn term. In that context, at the conclusion of the appeal hearing I announced my decision that the appeal would be dismissed with reasons to follow. I now set out my reasons for dismissing the appeal.

BACKGROUND

[5]The background to the matter can be taken relatively shortly for the purposes of considering the issues that arise on appeal.[6]J was born on 2 November 2016 and is now aged 8 years old. L was born on 7 September 2018 and is now aged 7 years old. The parties married on 13 July 2022 and separated in December 2023.[7]The issues with which the Recorder was concerned arose in the context of the mother having moved with the children from X county to Y county and enrolled the children in a new school. The Recorder was satisfied that the mother took this step without notice to the father, the mother asserting that she had done so on the basis of erroneous legal advice. Within this context, upon the application of the father, the District Judge made a joint “lives with” order on an interim basis. The father remained living in X county and the mother remained living in Y county. The distance between the parents’ respective properties is some 70 miles. The matter was listed for final hearing before the Recorder.[8]The Recorder had the benefit at the final hearing of a report and an addendum report from a Family Court Reporter (hereafter “FCA”) and heard evidence from her. In her first report, the FCA recommended that the children should live with both their mother and their father but without relocation, meaning that the children would stay with their father during the week and with their mother at the weekend and would remain in school in X county. In her second report, following receipt of evidence from the school, including some CPOM forms, the FCA again concluded that there was no indication that a relocation to Y county was “necessary” for the children. In her oral evidence before the Recorder, the FCA confirmed that her recommendation remained the same, namely that the children should reside with their father during the week and with their mother three weekends out of four. The Recorder’s judgment further notes that, in the context of the mother living some 70 miles from the school the children then attended in X county, the FCA recommended a further midweek overnight contact with the mother during the week the children did not spend the weekend with her.[9]The Recorder made clear at the outset of the judgment that, in the foregoing circumstances, the “key question in this hearing has been where the children should live during the school week”. In that context, at the conclusion of the evidence the Recorder gave an ex tempore judgment in which he concluded that, during school term time, the children would live with their Mother from Monday morning until Friday evening and would live with their Father from Friday evening until Monday morning and would attend the school in Y county.[10]The father now contends that the Recorder was wrong to invert the child arrangements from the children having had their term-time week-day residence with Father and week-end residence with Mother to having the opposite arrangement moving forward, with the commensurate order that the children change schools, in light of the 70 mile distance between the parties’ homes. The mother contends that the judge was entitled on the evidence before him to reach the decision he did and that his judgment is unimpeachable.

GROUNDS OF APPEAL

[11]Within the foregoing context, the father relies on three grounds of appeal against the order made by the Recorder. Namely that: i) The judge erred in rejecting the clear and consistent advice of Cafcass that it would be in the children’s best interests to remain living with the Father during weekdays and Mother during weekends by: a) failing to give any good reasons for departing from her conclusions as to what was in the children’s best interests, and; b) drawing unsustainable and irrational inferences regarding(1) Ms Shaw’s consideration of the updated CPOMS and(2) the weight to be attached to Ms Shaw’s advice from his unrelated finding that the Father did not support additional indirect contact with Mother. ii) The judge erred in placing inappropriate, arguably decisive, weight on the children’s wishes and feelings in undertaking his evaluation of the welfare criteria by: a) Failing to give a balanced analysis of the children’s expressions of wishes and feelings; b) Failing to consider the expressions of wish reported properly and in context of the case as a whole by: i) Not considering the impact of the children’s respective ages on the weight that could properly be attributed to them; ii) Failing to make any finding in relation to the allegation by Father that Mother was influencing the children’s wishes; iii) Failing to weigh in the balance the clear evidence of the impact of parental conflict on the weight that could properly be attributed to them. iii) The judge failed to consider the question of relocation and child arrangements holistically and in particular the impact that the change of week-day residence would have on the children’s relationship with Father.

RELEVANT LAW

[12]The law is clear as to the boundaries within which the appellate court will operate when determining an appeal from the first instance court.[13]Pursuant to FPR r30.12(3) the appeal court will allow an appeal where the decision of the lower court was(a) wrong; or(b) unjust because of a serious procedural or other irregularity in the proceedings.[14]As has been noted repeatedly in cases concerning the welfare of children, the lower court has a broad discretion when determining an issue by reference to the welfare checklist set out in s.1 of the Children Act 1989 (hereafter “the 1989 Act”). Whilst, where the decision of the judge exceeds the generous ambit within which a reasonable disagreement is possible, the appellate court may conclude that the decision is wrong, as noted in G v G [1985] 1 WLR 647 per Lord Fraser, there are sound reasons for the appellate court respecting the wide discretion afforded to the judge at first instance:
“The reason for the limited role of the Court of Appeal in custody cases is not that appeals in such cases are subject to special rules, but that there are often two or more possible decisions, any one of which might reasonably be thought to be the best, and any one of which therefore a judge may make without being held to be wrong. In such cases therefore the judge has a discretion and they are cases to which the observations of Asquith L.J., in Bellenden (formerly Satterthwaite) v. Satterthwaite [1948] 1 All E.R. 343 apply. My attention was called to that case by my noble and learned friend Lord Bridge of Harwich, after the hearing in this appeal. That was an appeal against an order for maintenance payable to a divorced wife. Asquith L.J. said, at p. 345: "It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”
I would only add that, in cases dealing with the custody of children, the desirability of putting an end to litigation, which applies to all classes of case, is particularly strong because the longer legal proceedings last, the more are the children, whose welfare is at stake, likely to be disturbed by the uncertainty.” "It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”[15]This seminal passage in G v G has resonated in later authorities examining the proper approach of the appellate court, including in cases concerning the welfare of children.[16]In Piglowska v Piglowski [1999] 1 WLR 1960, Lord Hoffman held as follows at [1372-3]:
“The need for appellate caution in reversing the trial judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation.”
[17]The importance of upholding judicial discretion was also emphasised by Baroness Hale in Re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40, [2006] 1 AC 80 at §12:
“In short, if trial judges are led to believe that, even if they direct themselves impeccably on the law, make findings of fact which are open to them on the evidence, and are careful, as this judge undoubtedly was, in their evaluation and weighing of the relevant factors, their decisions are liable to be overturned unless they reach a particular conclusion, they will come to believe that they do not in fact have any choice or discretion in the matter.”
[18]In Re S [2007] EWCA Civ 54, [2007] 1 FLR 819 the Court of Appeal again emphasised the need to respect judicial discretion as to the best order for meeting the child’s needs when arrived at after careful reference to the welfare checklist, Wall LJ (as he then was) holding at [48] that:
“Provided the judge has carefully examined the facts, made appropriate findings in relation to them and applied the welfare check-lists contained in section 1(3) of the 1989 Act and section 1 of the 2002 Act, it is unlikely that this court will be able properly to interfere with the exercise of judicial discretion, particularly in a finely balanced case.”
[19]In the foregoing circumstances, the appellate court should adopt a cautious approach before interfering with findings of fact properly made and of the trial judge’s evaluations (Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5, [2014] ETMR 26 at [114] and [115]). It is not sufficient for the appellant to demonstrate that a different court could or would have come to a different decision in its exercise of discretion. As set out by Lord Neuberger in Re B (A Child)(Care Proceedings: Appeal) [2013] UKSC 33, [2013] 1 WLR 1911 at [91], it must be demonstrated that the judge was “wrong”.[20]In this case, central to Ground 1 of the father’s grounds of appeal is that the Recorder failed to give any good reasons for departing from the conclusions of the FCA as to what was in the children’s best interests. In this context, in departing from the reasons of the FCA, the authorities make clear that the judge is required to provide reasons for why the welfare recommendation made by the FCA has been departed from (W v W (A Minor: Custody Appeal) [1988] 2 FLR 505).[21]The reasons provided for departing from the recommendation of the FCA should be clear and adequate reasons. In Re J (Residence: Expert Evidence) [2001] 2 FCR 44, Hale LJ (as she then was) made clear:
“It is of course well-established that, if there are professional witnesses who have been asked to advise the court by way of a section 7 report, the court should at least do those witnesses the courtesy of explaining clearly the reasons for departing from their recommendations (although it has always been acknowledged that the court has the power to do that).”
[22]In Re M (A Child) [2017] EWCA Civ 2356, in which the Court of Appeal overturned a first instance decision for a mother to relocate to Colombia on the basis that the judgment had not been adequately well reasoned and there was no explanation for departing from the Cafcass recommendation, Peter Jackson LJ concluded that “In a decision of this importance, the judge did not really reason her decision at all, nor faced with a sophisticated Cafcass evaluation did she give any adequate explanation for disagreeing with it”.[23]Finally, with respect to the treatment of the wishes and feelings of the children, which is the subject of Ground 2 of the grounds of appeal, in P-S (Children) [2013] EWCA Civ 223, [2013] 1 WLR 3831 at [43], the Court of Appeal stated:
“The checklist sets out a range of factors to be taken into account, only one of which is the wishes and feelings of the child having regard to his age and understanding. The weight to be given to that factor will vary from case to case. It may be a very weighty factor, it may even be the determinative factor in a particular case but s. 1(3) simply cannot be construed so as to read into it some hierarchy of weight or presumptions of precedence over other factors. Each case is fact sensitive.”

DISCUSSION

[24]As announced at the conclusion of the appeal hearing, I am satisfied that the father’s appeal must be dismissed on all grounds. My reasons for so deciding are as follows.

Ground 1

[25]With respect to Ground 1, at paragraph [12] of his judgment, the Recorder was careful to place his evaluation of the FCA’s evidence in the following legal context:
“[12] There is expert evidence in this case, expert evidence from Cafcass, and their job is to provide an opinion and to provide advice to the court, albeit specialist advice. The court’s job is different. It is the court that has to decide the case. The expert does not decide the case. And here, whilst I have expert advice and it is important advice, it is just that, advice, and the onus is on me to decide the case and I may reject some or all of the recommendations of an expert if I feel I have good reason to do so and needless to say it will be apparent because of the judgment I have already announced that I have chosen to do so in this case.”
[26]Having set out this context, the Recorder summarised clearly in his judgment the written evidence, contained in the main and addendum s.7 reports, and the oral evidence of the FCA that he considered salient. In particular: i) In light of the mother’s unilateral decision to relocate, the FCA had stated “it was a concern as to whether mother can facilitate contact with the father but when she looked at it she felt that the mother had since then reflected on the impact of her unannounced decision to relocate upon the children.” ii) The FCA gave evidence that “J considers mother’s house to be home and that J had said she would like to live with mother, and that when pushed agreed that she would like to spend time with father and she specifically said two days including overnight. J said her father can upset or make her sad at times and she also said she wanted to go to [the Y county school]” (in this context, it is noteworthy that the transcript of the hearing demonstrates that the FCA conceded in cross examination that there were many repeated tearful references to J missing her Mother, that J’s position had not changed since last September and she would prefer if the arrangements were effectively reversed, that J continued to miss her Mother throughout the week and not just on transition days and that the CPOMS records reflected that J was quite sad). iii) At the time of the FCA’s first report she was of the view that “L said he would like to live with the mother ‘all the time’ and he thought father got an unfair amount of time compared to mother. He also said he wanted to go to [the Y county school].” iv) The FCA’s view was that the impact of adult conflict on the wishes and feelings of the children, “has led to the wishes and feelings expressed by the children and there was a risk that the emotional dysregulation would be compounded if their wishes and feelings were not respected.” v) With respect to the consequences of not following the wishes and feelings of the children, the Recorder noted that the view of the FCA was in particular that “if the wishes and feelings were not followed in this case it could impact how they relate to the father in the future and their behaviour with each parent, their presentation at the school, the thought that their views lacked value, and that have not therefore been listened to.” vi) The FCA had received evidence from the school that the children missed both parents depending on who they had been staying with, missing the parent they had not been with. vii) The FCA had given oral evidence that “L had alleged that he had been thrown to the floor by the father and that J supported that complaint.” The FCA stated that J had also reported “father throwing L to the floor and said some negative things about the father”. The FCA had stated in evidence that “Whilst I am of the view that the children’s interactions with the father did not reflect this, they clearly had some concerns and if [the father] dismisses this then this could impact upon their emotional wellbeing and subsequently his relationship with them as they grow.” viii) The FCA agreed in oral evidence that “the CPOMS documentation contained frequent entries that J was missing mother and only one or two accounts about missing dad” but that the FCA stated she had “taken a holistic view which took into account amongst other things her observations of the children being contented in father’s care.” ix) The FCA gave evidence that “there were issues surrounding the children being able to have additional telephone access to mother outside of the Wednesday ordered phone calls. The FCA “said this has only taken place twice and could be indicative of father’s inability to facilitate contact with the mother.” x) The FCA “had taken into account the wishes and feelings of the children but thought that these were outweighed by other welfare factors such as their positive relationship with father, the changes they have already experienced including their parents’ breakup, the unannounced relocation, the stability their current school provides, their existing relationship with their father, and the familiarities of the current arrangement” and “there is the fact that the children do have a relationship with the mother even under the existing arrangements.” xi) The FCA “favoured the children staying with the father because of the changes already experienced, the stability within the current school, and the availability of the mother for a relationship with the children at weekends” and that “it is really the familiarities that the children experience in the current arrangements including the school that she thought were important to enable consistency for them.”[27]Having regard to role of the court as the final arbiter of the welfare outcome of a case and the evidence heard and analysed by the Recorder, I am satisfied that the judgment of the Recorder cannot be said to have failed “to give any good reasons” for departing from the FCA’s conclusion that the children should reside with their father during the week and with their mother three weekends out of four with a midweek overnight contact with the mother during the week the children did not spend the weekend with her.[28]I pause to note at this stage that the Recorder made a finding in respect of one of the matters raised in the evidence of the FCA, namely that there were issues surrounding the children being able to have additional telephone access to mother outside of the Wednesday ordered phone calls the extent to which the father. In the context of the father’s evidence that he had not prevented the children from phoning, and said if the children asked he would facilitate such a call, the Recorder found to the contrary as follows:
“[48]... I say that I have found that I accept his evidence on almost all respects but in one regard I believe that given the evidence from Cafcass, mother and the children, on the balance of probabilities father has not, as he said he had, facilitated the additional phone calls between the children. And so, on that basis I do not accept father’s evidence and I find that there is more than sufficient evidence on the contrary to find against him on that.”
[29]In summarising the evidence of the FCA as set out above the Recorder had expresslyforeshadowed in his judgment part of his reasoning for departing from her conclusions as to what was in the children’s best interests:
“[27] Miss Shaw agreed that the disadvantages that she had initially identified regarding the mother in her first section 7 report had largely disappeared for mother whereas for father they do remain. And that is important for when I come to explaining my judgment because my position is that things have changed somewhat since Miss Shaw conducted her investigation.”
[30]Later in his judgment, the Recorder further articulated the reasons he relied on for not following the recommendation of the FCA, beginning with his overall assessment of the FCA’s evidence:
“[46] Turning to my assessment of the evidence, looking first at Ms Shaw, the Cafcass Officer, I intend there to be no contradiction in what I say here about my view of Ms Shaw and my departure from her conclusion because I found Ms Shaw to be an impressive professional witness who had conducted the necessary enquiries and she expressed a coherent view in support of her recommendations. It is just the case that I disagree that that coherent view is the most appropriate for resolving the welfare interests of the children. But it is a coherent view, it is not an incoherent view. [47] I commended her of course for the short timeframe in which she produced the additional report and I take that into account. I also take into account the fact that she was given a limited brief for conducting that report, so it is necessarily a limited report. But, as I say, I decided to depart from the recommendation that she made because I have this different view and therefore I reject her assessment concerning the welfare of the children and I will say why in due course.”
[31]The Recorder goes on in detail to “say why” he took a different view from the FCA in paragraphs 69 to 78 of the judgment, which set out the following reasons for the Recorder differing from the recommendation made by the FCA: i) Since the recommendation of the FCA that the children should live with both their mother and father but without relocation, meaning that the children would stay with their father during the week and with their mother at the weekend, was arrived at there had been a number of changes with respect to the matters the FCA had taken into account: a) Both parents had moved house. b) The children were a little older and their wishes and feelings with respect to where they wished to live, namely with the mother, had solidified. c) The concerns raised by the father regarding mental health issues and substance misuse on the part of the mother were no longer pursued. d) The children were more familiar with Y county. e) The mother’s uncertainty about whether the mother could locate employment that would permit her to spend more time with the children had been resolved. ii) The FCA had concluded that the father was supportive of the children’s relationship with their mother but the Recorder had found this not to be the case in circumstances where the father had not promoted additional contact by way of telephone calls, contrary to his evidence that he had done so. iii) The court placed more weight than the FCA on the disadvantage identified by the FCA, namely the children living with their father did not align with their wishes and feelings in circumstances where their wishes and feelings with respect to where they wished to live had solidified. iv) The court placed more weight than the FCA on the further disadvantage identified by the FCA of the children living with their father, namely that the children had expressed the view that the father is “mean” and can become angry. v) The court placed more weight than the FCA on her evidence as to the negative consequences of the children’s views not being listened to, which could impact how they relate to the father in the future and their behaviour with each parent, their presentation at the school and lead to them thinking that their views lacked value. vi) The FCA had not evaluated the CPOMS evidence as part of the judgment section of her report, which the Recorder was satisfied was an omission. vii) The FCA had recommended an additional weekend for the father, further reducing the children’s time with their mother and further departing from the children’s clearly expressed wishes and feelings, and suggested what the Recorder was satisfied was a unworkable midweek overnight contact with the mother during the week the children did not spend the weekend with her in the context of the mother living some 70 miles from the school the children attended in X county. viii) The court took a different view on the evidence from the FCA regarding the impact on the children of the current arrangements, particularly having regard to the CPOM reports dealing with J’s statements, which included that she was sad living with her father, that she counts down the days until she sees her mother and that her father will not permit her to make telephone calls to her mother save for Wednesdays, which makes her sad. ix) In circumstances where the children already lived in two locations and had familiarity with both, the Recorder considered he could give more weight to the children’s wishes and feelings than the FCA had felt able to.[32]Having regard to the evidence before the court, the Recorder’s assessment of that evidence and the findings he made, none of which are the subject of appeal, the reasons given by the Recorder for departing from the recommendation of the FCA are plainly clear and adequate. They are grounded in the material that was before the court and Recorder’s evaluation of that material, including the reports and oral evidence given by the FCA. Further, they concentrate on aspects of the evidence and welfare evaluation that are centrally relevant to question of where the children should live during the school week and concentrate on the welfare factors examined by the FCA that the court was required to consider and determine. Finally, they articulate in clear terms why the Recorder arrived at a different welfare evaluation on the evidence to that advanced by the FCA in her two reports and oral evidence.[33]I acknowledge that an element of the first ground of appeal is the assertion that the Recorder was guilty of drawing unsustainable and irrational inferences regarding Ms Shaw’s consideration of the updated CPOMS and the weight to be attached to his finding that the Father did not support additional indirect contact with Mother. These grounds are dealt with in detail in Ms Stacey’s Skeleton Argument. I am not, however, satisfied that either of these assertions is sustainable.[34]With respect to the CPOMS, the records were plainly relevant material to the evaluation of the children’s welfare. The Recorder had previously admitted the material and adjourned the proceedings in order to permit the FCA to consider the CPOMS records and provide an addendum report. The judge was entitled to take into account the fact that FCA had not dealt with the CPOMS in the ‘judgment’ section of her report when determining whether to depart from her recommendation. Further, the contents of the CPOMS were available to the judge, who was entitled to draw his own conclusions from their contents when undertaking his welfare evaluation and plainly did so. Where the judge concluded that this exercise demonstrated that the FCA had not sufficiently analysed the CPOMS and that the CPOMS supported a different conclusion to that reached by the FCA, the Recorder was entitled to rely on those matters in deciding to depart from the recommendation of the FCA.[35]With respect to the weight to be attached to his finding that the father did not support additional indirect contact with mother, as I have noted the judge made a specific finding that, on the balance of probabilities, the father had not facilitated the additional phone calls between the children and the mother, rejecting the father’s evidence that he had done so. That finding has not been appealed by the father, and therefore stands. When the Recorder came to articulate his reasons for departing from the recommendation of the FCA, he clearly set out the role of the finding he had made in his decision to depart from that recommendation. Namely that the FCA had concluded that the father was supportive of the children’s relationship with their mother but the Recorder had found this not to be the case having regard to his not having promoted additional contact.[36]Having made the finding that he did regarding the father’s failure to promote additional indirect contact (which was grounded in evidence that included the CPOM recording that J “says her dad won’t let her call her mum, only on a Wednesday, and that makes her sad”), a finding the father does not seek to appeal, the Recorder was entitled to rely on that finding as reason for departing from the FCA’s recommendation, in circumstances where it stood in opposition to the conclusions reached by the FCA. I cannot therefore accept Ms Stacey’s submission that in taking this course the Recorder adopted an approach that went “far beyond the reasonable scope of the judge’s reasonable discretion” and comprised “a wholly irrational basis” on which to discount the FCA’s recommendation.[37]In the circumstances, I am satisfied that there is no proper basis for contending that the Recorder erred in rejecting the advice of the FCA that it would be in the children’s best interests to remain living with the Father during weekdays and Mother during weekends. In particular, Ms Stacey’s submission that the Recorder “gave little or no reasoned justifications for departing from” the recommendations of the FCA is simply unsustainable in the circumstances set out above.[38]As he was required to do, the Recorder considered and evaluated the evidence, including the recommendations of the FCA, against the welfare checklist in s.1 of the Children Act 1989 and determined the outcome that best met the welfare needs of the children, having regard to their best interests as his paramount consideration. In circumstances where his decision differed from the recommendation of the FCA, the Recorder explained his reasons for departing from that recommendation. Having regard to those reasons, there is no basis for arguing that the Recorder’s treatment of the FCA’s recommendation was wrong, procedurally irregular or was an exercise of discretion that exceeded the generous ambit within which a reasonable disagreement is possible. I reject Ms Stacey’s submission that the Recorder had no good reason nor rational basis for departing from the recommendation of the FCA. I deprecate in particular, as wholly unsupported by any evidence, the submission that the Recorder had predetermined his approach to the evidence of the FCA and was casting around after the fact to justify the position he had assumed.

Ground 2

[39]I am likewise satisfied that a proper reading of the judgment does not bear out the assertion that the Recorder failed to give a balanced analysis of the children’s expressions of wishes and feelings. It is equally unsustainable to assert that the Recorder failed to consider the expressions of wish reported properly and in context of the case as a whole by not considering the impact of the children’s respective ages on the weight that could properly be attributed to them, failing to make any finding in relation to the allegation by father that mother was influencing the children’s wishes and failing to weigh in the balance the clear evidence of the impact of parental conflict on the weight that could properly be attributed to them.[40]The judgment records that both children had written letters to the court expressing a wish to live with the mother. As set out above, the Recorder further recorded in his judgment what the children had said to the FCA. When dealing with the evidence he had heard, the Recorder also set out clearly in his judgment the FCA’s views on a number of matters relevant to the assessment and weighing of the children’s wishes and feelings. In particular, he identified the view of the FCA that, although the children appeared to have a fondness for their mother more than their father and appeared to suggest this in terms of favouring the mother, their interaction with the father did not support that view. The Recorder also expressly referred, I am satisfied accurately, to the FCA’s view of the impact on the children if their wishes and feelings were not respected in this case, namely that there was a risk that “the children’s emotional dysregulation would be compounded if their wishes and feelings were not respected” and that:
“[21] In particular, Ms Shaw identified that if the wishes and feelings were not followed in this case it could impact how they relate to the father in the future and their behaviour with each parent, their presentation at the school, the thought that their views lacked value, and that have not therefore been listened to.”
[41]Whilst the father asserts as an element of his second ground of appeal that the Recorder failed to make any finding in relation to the allegation by Father that Mother was influencing the children’s wishes, when evaluating the evidence of the father the Recorder expressly considered and rejected the father’s assertion that the children’s views were not genuinely held and made a specific finding, which again is not the subject of an appeal:
“[48] I found his evidence to be comprehensive and truthful and sincere in almost all respects, although I did think he seemed oblivious to the wishes and feelings of the children on the issue before the court, although I accept of course that his case is that these are not genuinely held views of these children, but I find against that, I find that these are the genuinely held views of the children.”
[42]Within the foregoing context, when undertaking his welfare analysis, when dealing with the children’s wishes and feelings and in the context of his un-appealed finding that their expressed wishes and feelings were the genuinely held views of the children, the Recorder gave careful thought to the children’s respective age and understanding, the consistency of their views and the weight to be accorded to each child’s views in the welfare analysis:
“[51] Turning to the welfare analysis, I follow the checklist as I mentioned earlier and the ascertainable wishes and feelings of the children come first in that checklist. They are very important in this case. We have got young children in the sense of being six and eight but they are old enough in my view, especially in J’s case, to express coherent and considered views as to where they would like to live. They clearly both love father and they both enjoy being in his care most of the time. However they, and particularly J, have expressed a clear preference to live with mum and attend [the Y county] school. They have also expressed some negative views of their father. And the views of the children have been consistent during this litigation and I consider them to be settled and clear. [52] There views were first expressed to the Cafcass Officer during the section 7 investigations and we can see that they are repeated throughout the CPOMS documentation. I also note that they are opinions and wishes and feelings that are ventured on largely existing circumstances, not on purely hypothetical or unknown future situations. Therefore I give them added weight as a result of that.”
[43]Viewed in the context of the Recorder having given his judgment ex tempore at the conclusion of the hearing, and placed in the context of the judgment as a whole, I am satisfied that the Recorder conducted a balanced analysis of the children’s wishes and feelings, including an evaluation of the impact of the children’s respective ages on the weight that could properly be attributed to them, having expressly considered and rejected the father’s assertion that the children’s views were not genuinely held, and having evaluated the children’s wishes and feelings as having been consistently expressed throughout litigation spawned by the parental conflict.[44]Whilst the father asserts that the Recorder failed to weigh in the balance the evidence of the impact of parental conflict on the weight that could properly be attributed to them, such an omission does not emerge from the judgment, which must be considered as a whole.[45]It is clear from the judgment that the judge was acutely aware of the impact of the children of parental acrimony at the time he undertook his analysis of their wishes and feelings. There is no basis to suggest that he failed to account for that context (which will be present in the vast majority of contested cases coming before a family judge) in reaching his conclusions. Accordingly, I cannot accept Ms Stacey’s submission that the Recorder “failed properly to consider the impact of parental conflict on the children’s expressions of wish” and hence “made it impossible to properly adjudge whether the expressions of wish were in fact rational and based upon a real emotional understanding by the children or whether they were formed arising from the harm to which they had been exposed as a result of mutual parental acrimony” (such a neat and clear cut distinction being inherently unlikely in any event).[46]Finally, Ground 2 asserts that the Recorder placed “arguably decisive weight” on the children’s wishes and feelings. Whilst the Recorder stated in terms in his judgment that the children’s wishes and feelings were very important, nowhere did he state he was treating them as determinative. The fact that the Recorder did not treat the children’s wishes and feelings as determinative is demonstrated by the other factors expressly relied on by the Recorder as underpinning the conclusion of his welfare analysis when the judgment is read as a whole.[47]These included, on the Recorders assessment of the evidence, access to extra-curricular activities at the Y county school in the context of their educational needs; the fact that the change contemplated for the children was one of different timings and not different locations; the children’s proven ability to adapt to a change of school; their wishes and feelings regarding schooling being expressed in the context of having knowledge of the Y county school; the ability to walk to school from mother’s property; the prospect of a further housing change if they remained with father; the mother being better placed to ensure the socialisation of the children; the finding that the father had not adequately provided for additional indirect contact to take place; and the mother being in a better position to support the education and health needs of the children during the week. In this context, whilst Ms Stacey relies on Re S (A Child) [2009] EWCA Civ 445, [2010] 1 FLR 509 to submit that “neither child was old enough at the relevant time for their wishes to be given determinative weight”, that is not what the judge did in this case.[48]In the circumstances, with respect to Ground 2, I reject the contention that the judge erred by placing inappropriate, arguably decisive, weight on the children’s wishes and feelings in undertaking his evaluation of the welfare criteria.

Ground 3

[49]Finally, with respect to Ground 3, in my judgment there is no basis for contending that the Recorder failed to consider the question of relocation and child arrangements holistically and in particular the impact that the change of week-day residence would have on the children’s relationship with Father.[50]Ms Stacey submits that, in the context of the issue before the court concerning relocation, the Recorder failed, contrary to the requirements articulated in the decision of the Court of Appeal in Re C (Internal Relocation) [2015] EWCA Civ 1305, [2016] Fam 253, to undertake “a global, holistic, evaluation” of the children’s welfare by “balancing all of the relevant factors in the case before to decide which of the available options meets the requirement to afford paramount consideration to the welfare of the child.”[51]Before considering and analysing the evidence he had heard, the Recorder set out in his judgment the legal framework within which his was required to conduct the welfare exercise. In particular, at paragraph [9] he recorded:
“[9] Firstly, in deciding the case the welfare of these two children has been my paramount concern. If one looks at the Children Act, and particularly section 1, it sets out a checklist of factors for me to consider when deciding upon the welfare interests of the children.”
And at paragraph [11]:
“[11] All the evidence in the bundle, and the bundle is well over 500 pages and I have read every single page at least one (sic), but all evidence in there is admissible notwithstanding what lawyers would call its hearsay nature. And that includes the school and the local authority records, for example. However, I bear in mind that such evidence is hearsay and I give it the weight that I consider appropriate taking into account the qualities of that type of evidence. And I remind myself that if a fact is in dispute the best evidence will always be the primary evidence”
And at Paragraph [15]:
“I have read all the documents in the bundle and what follows is a summary of the live evidence that I have heard during the hearing, but I have considered this evidence in light of all the other evidence in the case and have already referred to the hearsay evidence as the school disclosure and the local authority disclosure, for example.”
[52]Within this context, it is plain from reading the judgment as a whole that Recorder thereafter proceeded to evaluate the central issue that he had correctly identified, namely where the children were to live during the week in term time. In undertaking that task, and in a carefully structured ex tempore judgment, the Recorder identified the welfare issue to be determined, set out the legal principles governing that determination, reviewed and evaluated the evidence he had heard, made findings were necessary and then undertook a welfare analysis by reference to the factors set out in s.1(3) of the Children Act 1989, which by their nature, and in this case, led to the Recorder comparing and balancing the competing positions of the parents in arriving at a welfare decision. In doing so, and as he had expressly recognised as his task, the Recorder balanced all of the relevant evidence he had heard before deciding that living with their mother during the week during term time best met the children’s needs having regard to their welfare as his paramount consideration.[53]With respect to the impact on the father (insofar as it is relevant to the children’s best interests), notwithstanding the characterisation adopted in Ms Stacey’s Skeleton Argument, the Recorder had before him cogent evidence of the father’s employer’s flexibility to accommodate his childcare commitments in the form of a letter dated 14 May 2025. That letter confirmed the father’s application with respect to his work hours had been approved and that he had the option to re-apply once the court had determined the child arrangements, albeit a new application would be required. The letter of 14 May 2025 makes no mention of how likely or otherwise it is that a further application would be granted. With respect to the children, the judge evaluated the nature of the change and its impact on the children at paragraphs 45 and 56 to 61 of his judgment. The Recorder’s ultimate decision, and its impact on the time the children spend with the father, is not inconsistent with the situation regarding the father’s employment set out in the letter of 14 May 2025.[54]Within this context, having regard to the judgment, I am not able to accept Ms Stacey’s submission that the Recorder failed to consider the question of relocation and child arrangements holistically and in particular the impact that the change of week-day residence would have on the children’s relationship with Father.

CONCLUSION

[55]The criticisms levelled at the Recorder’s judgment in the Grounds of Appeal amount, in the final analysis, to a critique of the weight the Recorder attached, or did not attach, to the evidence that he read and heard. It is not the role of the appellate court to second guess the Recorder’s conclusions in that regard, particularly in circumstances where the appellate court has not had the benefit of hearing the witnesses and evaluating the evidence in real time in the way the Recorder has. Only if the Recorder has gone wrong, committed a serious procedural or other irregularity in the proceedings or exceeded the generous ambit of his discretion when evaluating and attaching weight to the evidence in order to arrive at a conclusion could an appeal succeed.[56]There is plainly no basis in this case on which it can be said that the Recorder’s order of 22 July 2025 can be so impugned. The judgment, given ex tempore by the Recorder at the conclusion of the hearing, amounts to a clearly and properly reasoned determination by a judge who, in the exercise of his discretion, was entitled on the evidence before him to make the child arrangements orders that he did. Having regard to the reasons given by the learned Recorder, there is no basis for finding that in exercising his discretion in this case that the Recorder went wrong, committed a serious procedural or other irregularity in the proceedings or exceeded the generous ambit within which a reasonable disagreement is possible. The fact that the father does not agree with the Recorder’s decision does not change that position.[57]Accordingly, the appeal is dismissed and the stay discharged. I will invite the parties to provide short written submissions as to costs if that issue is not capable of being agreed in the context of these being proceedings concerning children.

order

“6. During school term time, the children shall: a) live with their Mother from Monday morning, delivery to school, until Friday evening; and b) live with their Father from Friday evening, collection by Father after school, until Monday morning, delivery to school.”