K-P (Children: Child Arrangements Order Appeal No 1), Re

I am dealing with an appeal brought by the appellant mother against the decision of HHJ Tolson KC made after a two-day hearing on 2 August of this year. The appeal is opposed by the respondent father, but is supported by the NYAS guardian, who represents the interests of the child, P, in these proceedings. P was born in July 2012 and so is 12 years of age. She has an older brother, K, who has also been the subject of protracted legal proceedings but who is not involved in this appeal. K is 15 years of age.

The grounds of appeal set out a number of matters which are prayed in aid in support of the overall submission that the judge was wrong in the decision he made on 2 August of this year to transfer the care of P from her mother, the appellant, to her father, the respondent, albeit on an interim basis. On 27 August this year, I granted a stay of that order, pending the hearing of the application for permission to appeal, and I listed the matter for consideration of the application for permission, with the appeal to follow if permission was granted. On 2 October of this year, the matter was stood out and listed today of the court’s own motion.

I should set out, at the outset, that I am going to grant the appellant permission to appeal. I am going to allow the appeal and set aside the order of HHJ Tolson KC. As is now agreed, certainly as between the appellant mother and the respondent father, I shall remit the matter for a rehearing before another judge.

Unfortunately, there is a long and protracted history to the litigation between these parents, concerning both K and P. There are similarities between the issues concerning both K and P, both in respect of alleged difficulties in their relations or complexities in their relations with their father and with attendance at school. More latterly, K has moved to live in Country A and now attends school in Country A, where he is, I am told and accept, doing very well.

Prior to the hearing in July, culminating in the judgment given on 2 August, the matter concerning P came before HHJ Tolson in April, after which a judgment was given on 30 April this year. As at the hearing in July, the principal issue was the fact that P was not attending school, on anything close to a regular basis. At that hearing in April, various options were considered and the judge adjourned the matter to the hearing in July, making it plain that, for him, the principal issue was P attending school and that if in the intervening period between April and July she did not, it was likely that he would order a transfer of residence of P from her mother to her father.

At the hearing in July, the judge heard evidence from the mother, from the father and from the NYAS guardian. It is plain from the judgment that the judge considered the approach and stance of the NYAS guardian to be “laid back” and that the recommendation that P should remain in her mother’s care and receive therapeutic intervention with support for her to attend school did not tackle head on the issues as identified by the judge.

The judge, in his judgment on 2 August, was again principally concerned with achieving an outcome whereby P attended school on a regular basis. He considered, as he set out in his judgment, that the mother had failed to achieve that goal. He was impressed with the evidence and approach of the father and he considered that the father may be able to achieve the objective that the mother had not achieved. During the course of the hearing before him, as reference is made in his judgment, there were issues about the impact of contact between P and her father upon her school attendance and otherwise, and the frequency with which that contact took place.

In the course of submissions before the learned judge, plan A and plan B were put to the judge on behalf of the mother. Both were predicated on the basis that the proceedings would conclude and that P would receive therapeutic intervention and would be encouraged to attend school in her mother’s care. At [24] of his judgment, the judge referred to those alternate plans A and B and said:

“Thus, as I understand it, plan A and plan B on the mother’s version have to be considered as exactly that: realistic options put before the court”.

The learned judge then proceeded to consider the various parts of the welfare checklist of section 1(3) of the 1989 Act, and in particular the wishes and feelings of P, which were not in favour of a transfer of residence from her mother to her father. He did refer in the course of that analysis to the adverse impact on P of not attending school and, in terms, being at a loose end in her daily life.

At [41] of the judgment, he says this:

“Ms Thornton, for the guardian, points out that I emphasise that the effects of change, on the last occasion, would be unpredictable. Of course, that remains largely true, but the point is (a) we have tried one option, and (b) there is at least one reasonable plan now on the table for the future”.

That, it would appear, is a reference to the father’s plan for a transfer of residence.

At paragraph 49 of the judgment, at the conclusion of his analysis of the welfare checklist, he said this:

“I have to consider the effects of change, and I have already touched upon them in this judgment. The key question in terms of change - and as I emphasise, something has to change - is what plan offers the best chance of getting P back into school”.

In my judgement, the judge had only briefly touched upon, in passing, the impact on P of moving from the care of her mother, with whom she has always lived, to the care of her father.

Then, towards the end of the judgment, the judge said this:

“[55] I weigh up all those factors within the checklist. In my view on a clear balance, the father’s plan has to be tried. Consequently, P’s residence will change to the father. I suspect it should only be about a week before the end of the school summer holidays, so as to give P an opportunity to settle. That gives the father a little more time to put in place such support as he thinks he needs. He will have the right to choose an ISW to support the intervention. He will have to consult with the mother about these proposals. I am confident he will do that”.

Then he said, at [56]:

“The residence will be transferred expressly within the order, on an interim basis, and I propose to review the case just this side of Christmas”.

As I have indicated, there are a number of points of appeal advanced on behalf of the appellant. Those of merit, in my judgment, relate to the judge’s failure to include within the balancing exercise the mother’s plan A and/or plan B and, secondly, the failure of the judge to undertake a balance-of-harm analysis in relation to the transfer of P’s residence. It was submitted on behalf of the father that the judge had been provided with no evidence in reality, in the course of the hearing, in relation to plan A or plan B and, in particular, to the option of P boarding at school, and that it was only in the course of closing submissions that those matters - in particular, the option of attending school on a boarding basis - were put to the judge.

If the judge had in his judgment recorded those matters and/or had indicated that he did not think that either plan was achievable or realistic or that he had insufficient information before him provided by the mother in support of either arrangement, it may well be that this appeal would have no merit. But as I have previously indicated and quoted from the judgment, the judge said they were both realistic options. That being so, it was incumbent upon the judge to weigh those options in the balance against the father’s preferred course of a transfer of residence and to explain in the judgment in clear terms why he did not consider

In any event, and over and above that, it was incumbent, in my judgement, on the judge to undertake a balance-of-harm analysis to consider, whilst putting great importance rightly on P attending school, whether leaving her in her mother’s care or, as he ordered, transferring her care to her father would cause her the greater degree of harm and/or the greater degree of benefit. That does not appear in the judgment at all.

The need for such a clear and explicit analysis was all the greater given the stance of the NYAS guardian that (a) she did not support the transfer of residence and (b) she was greatly concerned about the adverse impact upon P, both short term and longer term, of undertaking such a move for her.

Miss Ecob, on behalf of the father, accepted - albeit reluctantly - that the judge could have expressed matters more clearly and that some of his reasoning was implicit in the judgment, rather than explicit. It is important that an appellate court does not undertake a close textual analysis or critique of a judgment, but the fundamental requirement of a judgment is that a party can understand and read why the decision was made and why a reasonable and realistic alternative course of action was excluded. As I hope is clear from what I have already said, I regret to conclude that is not possible in respect of this judgment given by HHJ Tolson on 2 August of this year.

It is important that I emphasise certain matters. First, the judge was undoubtedly right to place considerable emphasis and importance on P attending school on a regular basis. It was and is undoubtedly in her welfare best interest that she does so. It may be - and I express no view - that the judge was ultimately right to transfer residence, but I regret that I am bound to conclude that his decision was wrong because he does not set out a sufficient or adequate analysis of the matters to support his conclusion. Nor does he set out an analysis which includes an assessment of the balance of harm of the various realistic options before him in this case before coming to a decision.

Accordingly, in accordance with the Family Procedure Rules rule 30.3, I am satisfied that this appeal has a reasonable prospect of success, and permission to appeal is granted. In accordance with the Family Procedure Rules rule 30.12(3), I am satisfied, for the reasons I have given, that the judge’s decision was wrong and that I should allow the appeal. In regard to the provisions of rule 30.11, I will set aside the decision made on 2 August 2024.

At the conclusion of submissions, I raised with counsel - if that was the decision I came to - what should happen, it previously having been the primary submission on behalf of the appellant and the respondent that the appellate court should substitute its own decision. It was agreed by both of them that in fact the appropriate course was to remit the matter to another judge for the hearing. I agree. Given the issues at stake, it would be wholly inappropriate, particularly as matters have moved on and developed since 2 August, that this court should substitute its own view.

I have caused enquiries to be made. The matter can be reheard by HHJ Vincent in Oxford on 2 and 3 December of this year. I regret this necessarily has caused and will cause delay, but I hope the parties’ concerns about delay are assuaged by the early hearing of the matter before Judge Vincent.