News

Re: A & I (Children: Appeal: Relocation & Joint Lives-With Orders: Fresh Evidence) [2024] EWHC 1824 (Fam)

  1. This appeal serves as a reminder to PD12J paragraphs 36 and 37, the law in relation to appeals & admitting fresh evidence at an appeal.
  1. This was an appeal in private law proceedings against an order made by HHJ Cox sitting in the Central Family Court. The case concerned two children of primary school age, the appellant was their mother and respondent their father. The children were the only two children of the parties’ marriage. The father sought a shared care arrangement whereas the mother sought a live with order in her favour, for the children to spend time with the father supervised and she wished to relocate with the children from London to elsewhere in England.
  1. The case concerned allegations of domestic abuse. The mother provided a schedule of some 40 allegations which span almost the entirety of their marriage. The respondent formally admitted the allegations which fell into five categories:
  1. Angry outbursts towards the mother during which she was shouted at, insulted with vile names and, from time to time, put in physical fear for herself and the children's safety.
  2. Angry, bitter and resentful behaviours about the effect of maternity leave on the family's finances.
  3. Numerous rows and arguments in front of the children fuelled by his intolerance of social events, his frustration at having to care for the children and his ever-present resentment that the mother was at home caring for the children whilst he was out at work.
  4. He was irked by being obliged to finance the family.
  5. He "routinely ran the [mother] down" and undermined her. He placed no value on her contribution to the family.
  1. The court found that the effect of the father’s behaviours on the mother had been to destroy her confidence, to undermine her trust in the father and to cause her considerable levels of stress and anxiety in her dealings with him. Further, in respect of recent behaviours, the court found that during 2023 the father had been unable to govern the way he expressed both his frustration and opinions to the mother to that point that he became gratuitously offensive.
  1. The time the children spent with the father was supervised for some 19 months whilst the father undertook anger management and domestic abuse courses however, by the time of the hearing before HHJ Cox, contact had progressed to include overnight stays.
  1. On 10th November 2023 HHJ Cox refused the mother's application to relocate and ordered that the children shall live with their mother and father in accordance with a schedule of arrangements which provided effectively for shared care from May 2024 onwards.
  1. The mother appealed:

Ground 1: The learned Judge failed in breach of strong guidelines in PD12J paragraphs 36-37 to give any or any sufficient weight to the impact of past and ongoing domestic abuse by the father upon the mother’s mental health and well-being.

Ground 2: The court placed too much emphasis on its perception of the mother’s resilience and the notion that therapy would be likely in the future to alleviate her symptoms.

Ground 3: The court underestimated the father’s propensity for angry outbursts despite evidence of his behaviours within the past few months when he was unable to shield the mother from the anger and resentment that he felt towards her. The court assessed the principal cause of the abuse as the parental relationship rather than the father’s propensity for uncontrolled anger which would expose the children to an unreasonably high risk.

Ground 4: The learned judge failed to make a proper and accurate assessment of the financial implications of the mother not being allowed to relocate given the father’s inconsistent contribution to the family finances and the maintenance of the family home, and the mother’s desire to be financially independent of the father in the future.

Ground 5: The learned judge gave too little weight to the evidence that in her chosen location the mother would have family support whilst she would have none in London and was feeling lonely and depressed.

Ground 6: The court gave too much weight to the evidence of an Independent Social Worker about the wishes and feelings of the children.

  1. On appeal the mother sought to admit fresh evidence which was refused by Ms Justice Henke.
  1. Ms Justice Henke found that whilst HHJ Cox had considered paragraphs 36 and 37 of PD12J and the impact of the domestic abuse on the children, HHJ Cox had erred in that she has failed to consider the impact of (i) the admitted past abuse and (ii) her findings about the father’s behaviours in 2023, on the mother and thus the likely indirect impact on the children.
  1. Paragraph 48 of the judgment reads:

[48] Standing back and looking at the judgment, I consider HHJ Cox fell into error when considering the issue of the effect of the domestic abuse on the Appellant. She considered it in the context of the Appellant's ability to promote the children's relationship with the Respondent. However, she did not consider the direct and continuing impact it was having on the Appellant herself despite the Appellant having displayed her "hopelessness" in the witness box. She did not consider the likely indirect impact on the children if their mother continued to feel controlled and hopeless. The learned judge considered whether the Appellant could manage her disappointment but did not consider, as in my judgment she ought, that the impact on the Appellant of not relocating might be greater than mere disappointment. There was no evidence that any therapeutic work the Appellant might be willing to undertake would have an effect or, at least, an impact in the timescales for these children. In the circumstances, I have decided that Grounds 1 and 2 are made out. I also consider Ground 5 is made out. The learned Judge considered the support the Appellant had in London in terms of friends or colleagues but failed to take into account that the support of friends etc may not meet the need of the Appellant given the abuse she had suffered .The support of friends and colleagues, however close, sometimes just is not the same as that which family members can provide, especially in terms of emotional support. On those grounds, I find that the decision of HHJ Cox was wrong and cannot stand. There is thus no need to consider the other grounds of appeal. The appeal is allowed and paragraph 2 of the order of HHJ Cox is set aside as is paragraph 3 in part, namely paragraphs 7- 9 (which were stayed by Mr Justice Moor).

  1. Ms Justice Henke found the decision of HHJ Cox was wrong. The appeal was allowed.
  1. The full judgment can be found here - A & I, Re (Children: Appeal: Relocation & Joint Lives-With Orders: Fresh Evidence) [2024] EWHC 1824 (Fam) (16 July 2024)