XZ v YZ [2026] EWHC 1521 (Fam)

Neutral Citation Number: [2026] EWHC 1521 (Fam)Case No FA 2026 000002
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION ON APPEAL FROM
THE FAMILY COURT AT SOUTHEND
(HHJ AHMED)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15/06/2026
Before
MS JUSTICE HARRIS
Between
XZAppellantYZRespondent
Dr Charlotte Proudman (direct access through Proudmans) for AppellantThe Respondent appeared as a litigant-in-person.Hearing Hearing date: 8th June 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on 19th June 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................MS JUSTICE HARRIS DBEThis judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
[1]These proceedings concern a young child, ZZ, who is now 5 years old. He lives with his mother. The matter comes before me on appeal from a final welfare decision of HHJ Ahmed sitting at Southend on 15th December 2025. The appellant is XZ, ZZ’s mother, who has been represented at this appeal hearing by Dr Proudman. The respondent to the appeal is ZZ’s father, YZ. He represented himself before me.[2]Sadly, there have been Children Act 1989 proceedings with respect to the living arrangements for ZZ since May 2022. The parents separated in March of 2022 when ZZ was 18 months old. Allegations of domestic abuse made by XZ against YZ have been a constant feature of their relationship both pre- and post-separation. Despite those allegations of abuse, no separate fact-finding hearing has been deemed necessary within any of the proceedings, and ZZ has spent an increasing amount of time with his father. Prior to the current application, and pursuant to a final order made by HHJ Parnell in November 2023, ZZ was spending every other weekend with YZ from Friday after school until Sunday teatime, and half of school holidays to include visits to father’s family in P.[3]The current appeal arises from the latest set of proceedings which commenced in December 2024 with an application by YZ to enforce the order of HHJ Parnell. It became clear there had been no breach of that order, and the application was subsequently withdrawn. However, shortly after issuing the enforcement application, YZ also made a further application to vary the spending time arrangements. XZ made cross applications to vary. In his final welfare decision handed down on 15th December 2025, HHJ Ahmed varied the spending time arrangements to provide that ZZ would spend three weekends out of four with his father from Friday after school until return to school on Monday and equal time with his parents during the summer and Christmas holidays.[4]XZ issued her application for permission to appeal on 2nd January 2026. The order was stayed and permission to appeal was granted on the papers by me on 18th February 2026. The substantive appeal was heard by this court on 8th June 2026. Following the oral hearing the Court allowed the appeal on all grounds, with more detailed reasons to follow in writing. I now provide those reasons.

Grounds of appeal:

[5]The appellant advances seven grounds of appeal: Ground one: The Learned Judge erred in law and acted in a procedurally unfair manner by making adverse findings against the Mother amounting to alienating behaviour, including the express finding that “there is a probability the mother has influenced the child” and “at times the mother does encourage ZZ, but there are times she’s negative if it doesn’t fit the nature of frequency of what she wants.” Ground two: The Learned Judge materially erred in law by treating alienating behaviour as a “live issue” in isolation, while failing to treat domestic abuse as a live and determinative issue, contrary to the Family Justice Council Guidance on Responding to allegations of alienating behaviours. Ground three: The Learned Judge failed to apply PD3AA FPR 2010, rule 3A FPR 2010 and section 63 of the Domestic Abuse Act 2021 by failing to afford the Mother special measures during the hearing, particularly when she gave evidence via CVP with both parties having their cameras switched on. This diminished the quality of the Mother’s oral evidence and participation in the Final Hearing, particularly in circumstances where the Father was watching her. Ground four: The Learned Judge erred by departing from the recommendations of the Cafcass officer without providing clear and properly reasoned justification, notwithstanding his express, cursory, acknowledgment that cogent reasons were required for him to do so. Ground five: The Judge was wrong to exclude the evidence of the Mother’s Independent Domestic Violence Adviser (IDVA, Ms N) on the basis that: 1) he did not know her qualifications or experience; 2) her evidence was said to be hearsay; and 3) her views were characterised as “no more than personal opinion.” Ground six: The imposition of a 2-year barring order against both of the parties is entirely unjustified as a matter of law and factually in the circumstances of this case. Ground seven: The Learned Judge erred in law and principle by ordering that the Father spend three weekends in every four with the child during term time, a regime which was materially more extensive than that recommended by the Cafcass officer and which is unsupported by any proper welfare analysis.

Law:

[6]The relevant law can be very briefly stated. FPR 2010 rule 30.12(3) provides that an appeal may only be allowed where the decision was wrong or unjust for procedural irregularity. A decision may be wrong where: i) there has been an error of law; ii) the judge has reached a decision that cannot reasonably have been made on the evidence before the court, iii) the judge has clearly failed to give due weight to some very significant matter or has clearly given undue weight to some other matter; or iv) a discretion has been exercised in a way which was outside the parameters within which reasonable disagreement is possible: G v G (Minors: Custody Appeal) [1985] FLR 894.[7]As regards procedural fairness, it was held in Re L (Fact-Finding Hearing: Fairness) [2022] EWCA Civ 169, [2022] 2 FLR 1245 that at a fact-finding hearing a judge is entitled to go beyond the findings of fact sought by a party, but where they do so, they must have regard to appropriate procedural safeguards so as to ensure a fair hearing. That approach must apply equally to a final welfare hearing at which relevant facts remain in dispute.[8]In EY (Fact Finding hearing) [2023] EWCA Civ 1241, the Court of Appeal provided clear guidance on the approach to findings where a child’s welfare is in issue. The decision is with respect to care proceedings but equally applicable to private law proceedings. It was held:70. “In general, civil litigation is conducted in this country on an adversarial basis. It is not the role of the court to dictate to the parties what the issues are. But care proceedings are not simply adversarial. They are conducted in a jurisdiction where the child's welfare is the paramount consideration whenever the court is considering any question with respect to the upbringing of the child. It is therefore a fundamental part of the scheme of the rules governing such proceedings, in the Public Law Outline in FPR PD 12A, that it is for the court to identify the key issues and to give case management directions aimed at resolving them. A judge exercising his or her case management powers is obliged to scrutinise the findings sought by the local authority. If the judge concludes that those findings are unnecessary to resolve the welfare issues in the proceedings, he or she must say so. Equally, in my view, if the judge concludes that the local authority document does not address factual issues which require resolution before decisions can be taken about how the child's welfare needs are to be met, he or she is obliged to say so.71. It is of course much better for any such omissions to be identified at the case management hearing. Not infrequently, however, they only emerge at a late stage. In Re G and B (Fact-Finding Hearing) [2009] EWCA Civ 10, [2009] 1 FLR 1145 at paragraph 15, Wall LJ said:
"a judge … is not required slavishly to adhere to a schedule of proposed findings placed before her by a local authority. To take an obvious example: care proceedings are frequently dynamic and issues emerge in the oral evidence which had not hitherto been known to exist. It would be absurd if such matters had to be ignored." 72. In exercising these powers, however, a judge is of course required to ensure that the process is fair to all parties. In particular, a party against whom findings may be made is entitled to a fair hearing, including sufficient notice of the findings which may be made and the evidence relied on in support. The practice of the local authority filing a threshold document setting out the findings it seeks and identifying the evidence relied on in support addresses that requirement of fairness, and a judge is only entitled to make findings that go beyond those sought in the document if they are within the "known parameters" of the case: Re W (A Child) [2016] EWCA Civ 1140; [2017] 1 WLR 2415, Re L (Fact-finding Hearing: Fairness) [2022] EWCA Civ 169. If a court is considering making findings that go beyond those parameters, the party against whom those findings would be made must be given fair opportunity to challenge them. As Wall LJ put it in Re G and B (Fact-Finding Hearing), supra, at paragraph 16: "if the judge is, as it were, to go "off piste", and to make findings of fact which are not sought by the local authority or not contained in its Schedule, then he or she must be astute to ensure; (a) that any additional or different findings made are securely founded in the evidence; and (b) that the fairness of the fact finding process is not compromised." "a judge … is not required slavishly to adhere to a schedule of proposed findings placed before her by a local authority. To take an obvious example: care proceedings are frequently dynamic and issues emerge in the oral evidence which had not hitherto been known to exist. It would be absurd if such matters had to be ignored." "if the judge is, as it were, to go "off piste", and to make findings of fact which are not sought by the local authority or not contained in its Schedule, then he or she must be astute to ensure; (a) that any additional or different findings made are securely founded in the evidence; and (b) that the fairness of the fact finding process is not compromised."
[9]It is trite law that the essential touchstone is fairness, and the question is whether the proceedings taken as a whole were fair.

Grounds one and two:

[10]The appellate court is satisfied that the findings amounting to alienating behaviour against XZ are wrong and cannot stand.[11]In the course of his judgment, HHJ Ahmed made the following findings: [4] On the balance of probabilities, the mother has behaved in such a way as to influence the child in respect of the father. I put it in that very neutral way, because I do not necessarily say that the mother has set out to turn the child against father, but I will cover that in more detail in the judgment. [43] Indeed, the mother does encourage ZZ at times, but other times she is more negative about it if it does not fit with the nature or frequency of what she wants.[12]Significantly, these findings about XZ’s conduct and motivation, were used to justify a significant increase in father’s contact to counteract her ‘influence’.

The judge reasoned that increased time with YZ would:

“address the imbalance of time with each parent” and that “more frequent contact or time spent or living with the father will reduce the influence of any unintended or intended behaviours in the mother's house and strengthening the father-child relationship.”
[13]There were live within the proceedings a number of matters pertinent to any such findings and welfare conclusions:• XZ had consistently raised allegations of domestic abuse, including allegations of coercive and controlling behaviour, against YZ within the Children Act proceedings. Indeed, reports of domestic abuse dated back to 2021 when a referral was made by the police to the local authority following allegations made by XZ when still within a relationship with YZ.• XZ again raised allegations of domestic abuse with Cafcass within the current proceedings, including allegations of coercive and controlling behaviour post-separation and the use of litigation to perpetuate the abuse.• No fact-finding was felt to be necessary to determine the allegations, but they featured heavily in the section 7 report prepared by Cafcass.• The possibility of alienating behaviours was also considered at length by the FCA and informed her final recommendations. No fact-finding into allegations of alienating behaviours was similarly deemed to be necessary.• YZ had persisted in filming XZ at handovers by wearing bodycam video recording equipment despite recitals in previous court orders that he should desist from doing so.• YZ had moved to reside close to where XZ was living at a confidential address, with allegations he had driven around questioning ZZ so as to identify where they were living.• YZ had kept ZZ in P for 3 extra days over the Christmas vacation without agreement from XZ.• YZ had made an enforcement application and an application for a non-molestation order against XZ, both of which lacked merit having been dismissed/withdrawn.• YZ had sought to file private and confidential letters relating to mother’s mental health after the evidence had closed, suggesting a full psychological assessment was required.• There were reports of ZZ’s behaviour regressing and concerns raised by the IDVA, Ms N, as to what ZZ had said and reported to her during the period she had been working with XZ.• ZZ was expressing very negative wishes and feelings about his father, albeit presenting as comfortable in his care. School were expressing concern about his emotional welfare and need for additional support.[14]It is fair to note that the issue of alienating behaviours had been raised by YZ in his discussions with Cafcass and it was considered in some depth by the FCA in her section 7 report. It was therefore within the “known parameters” of the case. It is also perfectly open to the Court within a composite final hearing to make determinations as to disputed facts which are necessary for the welfare disposal. However, YZ had never sought a finding of alienating behaviours against mother, and XZ was not put on notice by either YZ or HHJ Ahmed that any such findings may be made against her. No schedule of allegations was filed or responded to. Furthermore, whilst her own counsel asked her one question during examination in chief as to whether she had ever alienated ZZ against his father, XZ was not cross-examined on the issue by counsel on behalf of father and her evidence was not therefore challenged.[15]Given the serious nature of the findings HHJ Ahmed made, and their centrality to his welfare determination, the Court is satisfied it was procedurally unfair for XZ not to have been put on notice that such findings may be made against her, and for the matters relied upon by HHJ Ahmed to support such a finding not to have been put to her during cross examination to enable her a fair opportunity to respond.[16]Moreover, in light of the extant allegations of domestic abuse made by mother against father, the basic approach adopted by HHJ Ahmed to the issue of alienating behaviours was flawed.[17]In the course of his judgment, HHJ Ahmed noted that he agreed with the submission made on behalf of father that “the issue of alienating behaviour should always be considered a live issue.” However, the Learned Judge did not have sufficient regard to the fact that domestic abuse was also very much a live issue and that the question of alienating behaviour could not be looked at and considered in isolation from XZ’s domestic abuse allegations. In that regard his approach was wrong.[18]In reaching his conclusions, HHJ Ahmed made no reference to the Guidance issued by the Family Justice Council in 2024 on Responding to Allegations of Alienating Behaviours. That Guidance provides: In light of their respective prevalence, and the relative harm to children and adult survivors, allegations of domestic abuse and ‘parental alienation’ cannot be equated. The risk, relevance and weight attached to ‘parental alienation’ and domestic abuse should not automatically be considered equal. Given the relative impact of domestic abuse, the harms that flow from it and the importance of protecting children, Alienating Behaviours will not be found in cases where findings of domestic abuse are made which have resulted in a child’s appropriate justified rejection (AJR), or in protective behaviours (PB) or a traumatic response on the part of the victim parent. Children can and do come to their own conclusions about what has happened in their family and how this affects their attitude to living with, or spending time with, one of their parents. They may wish to make choices or exert an influence over how they live their lives. Their actions may arise from alignment or affinity with one parent. They may not have strong negative feelings for the other parent but prefer spending time with one parent. Alignment may arise from the child’s experience of the other parent’s level of involvement in their lives, poor parenting, developmentally inappropriate expectations of a parent or merely differing parenting styles. The context in which alleged Alienating Behaviours occurs must inform an understanding of parental behaviour. A parent may be engaging in protective behaviours (PB) to shield a child from (further) harm, such as limiting contact with a perpetrator of abuse or moving away from the area. Indeed, when considering the child’s welfare, parents are expected to protect a child from harm. PB therefore cannot amount to Alienating Behaviours. A parent’s or child’s behaviour may also be a traumatic response to abuse (including litigation abuse) perpetrated against them by the other parent. Such traumatic responses likewise do not constitute Alienating Behaviours.[19]The approach set out within the FJC Guidance where there are cross allegations of domestic abuse and alienating behaviours was endorsed by the former President, Sir Andrew McFarlane, in Re Y (Experts and Alienating Behaviour: The Modern Approach) [2026] EWFC 38. Towards the end of his judgment, the former President set out the following approach to be adopted in such cases: [75] Turning to alienating behaviour, having set out the ground in the early parts of this judgment, it is possible to summarise the modern approach in short terms: i) As the full title to the FJC guidance makes plain, the reason for the court’s investigation should be ‘a child’s unexplained reluctance, resistance or refusal to spend time with a parent’, rather than the allegations that one or other parent may be making against the other; (ii) Where a child is reluctant, resisting or refusing to engage in a relationship with a parent or carer (element(i) of the three elements in paragraph 10 of the guidance), then the court’s focus will move to element(ii) to consider whether that reluctance, resistance or refusal is a consequence of the action of the estranged parent, where it is alleged that that parent has been abusive to the child and/or caring parent; iii) If it is found that the estranged parent has not behaved in a way in which the child’s reaction can be seen as an ‘appropriate justified reaction’ [AJR] to such behaviour, or, for other reasons, it is found that the child’s reaction is not caused by any factor such as a child’s ordinary alignment, affinity or attachment [AAA] to the parent with care, then the court will move on to element (iii); iv) It is only at the stage of element(iii) that the court will focus on whether the caring parent has engaged in alienating behaviours that have directly or indirectly impacted on the child, leading to the child’s reluctance, resistance or refusal to engage with the estranged parent. v) Thus, where domestic abuse is alleged, and there is a cross-allegation of alienating behaviour, if a fact-finding process is required, the focus of the fact-finding must be to first determine the issues of domestic abuse and secondly to consider whether the child’s refusal to engage with the estranged parent is an ‘appropriate justified reaction’ to any abusive behaviour, or that what has occurred is the result of protective behaviour or a traumatic response on the part of the victim parent. vi) Courts should not follow the route adopted by the judges in O v P and the present case in determining the issue of alienating behaviour on its own and without determining the underlying facts and, where it is alleged, the primary issue of domestic abuse; vii) Courts should not appoint an expert to advise in cases where a child is reluctant, resistant or refusing to engage with a parent unless and until there is clarity and, if necessary, facts that have been found, as to the parents’ past behaviour towards each other and the child and, if domestic abuse is proved, whether the child’s reaction to that behaviour is an appropriate one. (Emphasis added).[20]HHJ Ahmed did address within the course of his judgment some of the behaviours which had been raised by XZ as evidencing post-separation domestic abuse and ongoing coercive and controlling behaviour. Again, however, the approach adopted by the learned judge was wrong in that he considered each alleged incident or complaint in isolation and did not step back and ask whether those behaviours formed a potentially problematic pattern of behaviour. The harm that could be caused by such behaviours was not clearly articulated within the judgment.[21]Hence, when dealing with YZ’s filming of XZ and ZZ at handovers, HHJ Ahmed decided that “he was not going to make any direction that the child is not filmed or recorded in the future.” He noted:
“any such recording should remain unobtrusive, and not readily noticeable by the child.”
The learned judge expressed the view that recording handovers discourages ugly incidents and thus the probative value of such recordings outweighs the negative aspects. In reaching that conclusion, and although referring to the Family Justice Council Guidance on covert recordings (2025), no consideration is given to paragraph 3.9 of that Guidance which emphasises the harmful nature of covert recording in the context of an abusive relationship: Parents may perceive a covert recording as the only way to illustrate their experience of the behaviour of which they complain. However, in some cases the recording is a form of surveillance that in itself can be an example of distorted and obsessive thinking that can constitute a form of harassment, or be controlling or abusive. The implications of the substantial invasion of privacy involved in repeated covert recording of one parent by another has been held by the court to be “highly relevant to the welfare determination” when assessing and determining arrangements for the child.[22]This was not a case of covert recording, but the persistent recording of a parent against their consent can equally constitute an intrusive and harmful form of surveillance. The judge’s suggestion in his questioning of mother that it was her anxious response to the filming that was the problem is concerning.[23]A similar approach was taken to other concerns regarding father’s behaviour. Thus, HHJ Ahmed noted that it was “very unwise and unthoughtful” of YZ to move so close to where the mother lives. He described the father’s behaviour in failing to return ZZ after Christmas contact in P as an “isolated” incident. He didn’t give any consideration to the father’s litigation conduct in making an unmeritorious enforcement application or applying for a non-molestation order that was subsequently dismissed. Most importantly, he addressed these various behaviours in isolation, failing to consider whether looked at together those behaviours could constitute part of a pattern of coercive and controlling behaviour.[24]Having failed to consider the behaviours of YZ through the lens of possible domestic abuse, the learned judge then did not go on to ask himself the crucial question of whether such behaviours, properly understood and conceptualised as potential coercive and controlling behaviour, would explain ZZ’s reluctance to spend time with his father. In essence, whether ZZ’s negative views of his father were an appropriate justified reaction to ongoing abuse.[25]In the court’s judgment, HHJ Ahmed thus fell into error by inferring from the child’s reluctance to spend time with his father that he was being subjected to alienating behaviours by the mother, without properly considering first XZ’s allegations of domestic abuse and whether ZZ’s expressed reluctance to see his father was referrable to his lived experiences as a victim of domestic abuse.[26]The appeal must therefore succeed on these grounds.

Ground three:

[27]The final hearing was conducted via CVP. During mother’s oral evidence, and despite her allegations of domestic abuse, there were no participation measures in place. Both XZ’s camera and that of YZ remained on throughout her evidence so that they were visible to one another. XZ contends that that diminished the quality of her evidence.[28]YZ argues that there was no request made for special measures and it is unfair now to raise this as a ground of appeal and as a means of challenging the final welfare decision. Mother has been legally represented throughout proceedings, and it is regrettable that no application for participation directions was made by counsel who appeared in the court below. Nevertheless, the duty to ensure fair participation under the relevant legislation and rules rests with the court and is mandatory, regardless of whether an application is before it.[29]Section 63 of the Domestic Abuse Act 2021 provides that where a person 'is, or is at risk of being, a victim of domestic abuse', the court must assume that their participation and evidence will be diminished by reason of vulnerability. This underpins Rule 3A of the Family Procedure Rules 2010 which provides: 3A.3:(1) When considering the vulnerability of a party or witness as mentioned in rule 3A.4 or 3A.5, the court must have regard in particular to the matters set out in paragraphs (a) to (j) and (m) of rule 3A.7.(2) Practice Direction 3AA gives guidance about vulnerability. 3A.4: (1) The court must consider whether a party's participation in the proceedings (other than by way of giving evidence) is likely to be diminished by reason of vulnerability and, if so, whether it is necessary to make one or more participation directions. (2) Before making such participation directions, the court must consider any views expressed by the party about participating in the proceedings. 3A.5: (1) The court must consider whether the quality of evidence given by a party or witness is likely to be diminished by reason of vulnerability and, if so, whether it is necessary to make one or more participation directions. (2) Before making such participation directions, the court must consider any views expressed by the party or witness about giving evidence. 3A.7. When deciding whether to make one or more participation directions the court must have regard in particular to— (a) the impact of any actual or perceived intimidation, including any behaviour towards the party or witness on the part of— (i) any other party or other witness to the proceedings or members of the family or associates of that other party or other witness; or (ii) any members of the family of the party or witness; (b) whether the party or witness— (i) suffers from mental disorder or otherwise has a significant impairment of intelligence or social functioning; (ii) has a physical disability or suffers from a physical disorder; or (iii) is undergoing medical treatment; (c) the nature and extent of the information before the court; (d) the issues arising in the proceedings including (but not limited to) any concerns arising in relation to abuse; (e) whether a matter is contentious; (f) the age, maturity and understanding of the party or witness; (g) the social and cultural background and ethnic origins of the party or witness; (h) the domestic circumstances and religious beliefs of the party or witness; (i) any questions which the court is putting or causing to be put to a witness…; (j) any characteristic of the party or witness which is relevant to the participation direction which may be made; (k) whether any measure is available to the court; (l) the costs of any available measure; and (m) any other matter set out in Practice Direction 3AA.[30]As set out in the Family Justice Council Guidance on remote and hybrid hearings (2020), participation measures may include cameras being turned off or a party joining by audio only. The positive duty on the court to consider a) whether a party or witness is vulnerable, and b) to ensure there are participatory directions in force to assist that person to give their best evidence is clearly set out by Henke J in Re O (Appeal: Duty to consider fact-find) [2024] EWHC 839 (Fam).[31]There is unfortunately nothing before this Court to suggest HHJ Ahmed addressed his mind to these matters in the way FPR 2010 Part 3A and PD 3AA requires. In light of XZ’s allegations of domestic abuse, I am satisfied this omission constitutes a serious procedural irregularity.

Grounds 4 and 5:

[32]The appellate Court has had the benefit of considering the Cafcass officer’s s 7 report. It recommends that contact continue every other weekend, with a teatime mid-week contact, that pattern to continue in school holidays save for a one-week trip to P during the summer. The rationale for the recommendation was that ZZ was struggling emotionally to be away from his mother for 7 nights every other week during holiday periods.[33]It is of course trite law, as recognised by HHJ Ahmed, and set out by the Court of Appeal in Re M-W (Care Proceedings: Expert Evidence) [2010] EWCA Civ 12, that it is for the court and not the expert to decide on the totality of the evidence before it. There should however be sound reasons, set out within the judgment, for departing from expert advice, which would include the welfare recommendations of the Family Court Adviser (FCA).[34]HHJ Ahmed appears to identify two main reasons for departing from the recommendations of the Cafcass officer: i) that the report was unbalanced due to the FCA relying on the information provided by the IDVA, Ms N; and ii) placing undue weight on the wishes and feelings of the child.[35]Those reasons were, in the judgment of this court, insufficient to explain departing from the careful welfare analysis of the FCA. Most notably, the judge’s approach was flawed by reason of his criticism and indeed wholesale rejection of the information provided by the IDVA both to the FCA and to the court by way of letter appended to the mother’s witness statement.[36]The judge was highly critical of the involvement of the IDVA (ground 5), noting that he did not know her qualifications or experience, her evidence was hearsay and amounted to nothing more “than personal opinion.” He went on to observe, “she is not an expert, as far as the court is concerned, therefore her evidence through the Family Court Adviser is not admissible and are excluded.”[37]It is of course correct that the IDVA is not, and should not be treated as, a court appointed expert. The IDVA’s role is to provide support to an alleged victim of abuse, and their position is therefore very often inherently partisan and based on one party’s version of events. That said, the IDVA is a professional experienced in the dynamics of domestic abuse and safeguarding victims, including children. Whilst the partisan role of an IDVA may properly go to the credibility and weight to be afforded to the information/evidence they provide, it is wrong to simply dismiss their views as nothing more than ‘personal opinion’. That is even more so when the evidence they give is of a factual nature regarding what a child has said to them regarding their experiences in a parent’s care. Indeed, it is notable that HHJ Ahmed relied on some of the IDVA’s reports regarding what ZZ had said to her, in reaching his views regarding alienating behaviours and ultimate welfare determination.[38]Furthermore, hearsay is admissible into family proceedings (see detailed provisions FPR 2010 Parts 22 and 23). Indeed, it is very common for hearsay evidence in the form of letters and reports from professionals engaged with parents to be admitted into evidence. It will then be for the judge to determine what weight should be afforded to it. It is therefore incorrect as a matter of law to simply say that such evidence should be excluded.[39]As regards the concerns raised by HHJ Ahmed with respect to Cafcass speaking to the mother’s IDVA, it was in this Court’s judgment perfectly appropriate for the FCA to speak to the IDVA to ascertain her views regarding any ongoing risks to the mother and ZZ from domestic abuse and to take those views into account in reaching her own welfare determination. Indeed, such risk assessments are central to the reports prepared by Cafcass in the Child Focused Courts now being rolled out across England and Wales.[40]As regards the way in which the FCA regarded the information provided by the IDVA, the FCA was clear that she had considered the information but ultimately the analysis was her own and, as confirmed in her oral evidence, she would have reached the same conclusion irrespective of the IDVA’s position. In the Court’s judgment that approach is entirely appropriate and did not constitute a sound basis for departing from the FCA’s recommendations.

Ground 6

[41]It was XZ who applied for a s 91(14) order, it being her case that the father was using litigation as an ongoing tool of abuse. HHJ Ahmed, however, made the order against both parents on the basis of the risk of harm to ZZ from ongoing conflict and dispute between the parents. Whilst it is of course open to a Judge under s 91A(2) of the Children Act 1989 to make a s 91(14) order on that basis, the order followed from a flawed approach to the questions of risk and harm and the ultimate welfare determination. The s 91(14) order cannot therefore stand on the current basis and will fall for reconsideration in light of the final welfare determinations.

Ground 7

[42]The final welfare determination of HHJ Ahmed was firmly underpinned by his finding that mother was engaging in alienating behaviours and that increasing ZZ’s contact with his father was required to counter-balance any such influence. He held:
“More frequent contact or time spent or living with the father will reduce the influence of any unintended or intended behaviours in the mother’s house and strengthen the relationship with the father to be more frequent and longer time with him.”
The learned judge’s view that XZ was influencing ZZ against his father is weaved throughout his judgment. It follows that as those findings against mother cannot stand, the rationale underpinning HHJ Ahmed’s welfare analysis and the increased contact between ZZ and his father, also cannot stand. In those circumstances, the final welfare determination must also be wrong.[43]Finally, the Court notes with concern that the judgment of HHJ Ahmed contains the following passages:
“[T]he principle is shared care, the shared order and substantial time with the father. That is what I want to achieve…. In considering how much time a child should spend with each parent, the starting point is sometimes said to be 50/50 shared care. However, the starting point of this case is the order of Judge Parnell dated 13 November 2023… That provided for the child to live with the mother and an increasing programme of contact with the father.”
[44]These passages from the judgment of HHJ Ahmed, suggest the learned judge was influenced in his welfare decision-making by a preconception that the starting point should be shared care, 50/50 shared care or ‘an increasing programme of contact’, such that the contact time recommended by the Cafcass officer was regarded as “inadequate”. In taking such an approach, HHJ Ahmed fell into an error of law. The only relevant principle in determining an application for a child arrangements order is section 1 of the Children Act 1989 which makes the child’s welfare the paramount consideration. There is no starting point of 50/50 shared care or a pro-contact imperative. In determining a child’s best interests, the welfare checklist under section 1(3) of the Children Act 1989 must be applied without gloss or qualification. Although HHJ Ahmed refers in passing to the welfare checklist and paramountcy principle, he does not address the various factors under s 1(3) in any meaningful way. It was incumbent upon him to do so.

Conclusion

[45]For these reasons the appeal succeeds on all grounds advanced on behalf of the mother. The case will be remitted to the Designated Family Judge in Chelmsford for allocation to a different Circuit Judge for re-hearing. Harris J 15th June 2026