XX v XX

I am concerned with a little girl (“D”) who has recently turned 6 years old. I shall refer to her parents as M (her mother) and F (her father).

Between 3 and 6 March 2025, Recorder Moys (“the judge”) heard contested child arrangements proceedings. She made an order dated 6 March 2025 under which she provided for (in summary):

Judgment was handed down on 24 March 2025.

The provisions of the order at 2(i)-(iii) above were broadly in line with what M sought at trial. She now appeals against the balance of the order, specifically:

On 30 April 2025 Keehan J directed an oral hearing of the application for permission to appeal, with the appeal to follow if permission is granted.

Before me today, M has continued to be represented by counsel, Dr Proudman, who has made extensive written and oral submissions. At its core, M’s case is that the judge minimised the findings of serious abuse which had been made against F, and paid insufficient weight to the negative impact on both M and D of the continued use of F’s surname. In short, to be bound to the name of an abuser is, so it is submitted, clearly contrary to D’s interests. M further submits through counsel that the judge should have extended the Family Law Act order to provide M with appropriate protection in the light of the serious findings made against F. Finally, M says that the judge should have made a costs order in the circumstances of this case, to reflect F’s litigation conduct and the fact that she established a number of findings against F.

F appeared in person. He too placed before the court a detailed written submission, which he supplemented orally. The essence of his case is that the judge undertook an evaluation, and there is no basis for disturbing her conclusions.

An appeal operates by way of a review of the decision of the lower court: FPR 30.12(1).

By FPR 30.12(3) an appeal may be allowed where either the decision was wrong or it was unjust for serious procedural or other irregularity.

The court may conclude a decision is wrong because of an error of law, because a conclusion was reached on the facts which was not open to the judge on the evidence, because the judge clearly failed to give due weight to some significant matter or clearly gave undue weight to some other matter, or because the judge exercised a discretion which "exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong": G v G (Minors: Custody Appeal) [1985] 2 FLR 894. Per Lord Fraser at p.898:

In Re S [2007] EWCA Civ 54, the Court of Appeal reiterated 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:

More recently, Lewison LJ at para 2 of Volpi and Ors v Volpi [2022] EWCA Civ 464 put it this way:

The cautious approach to be adopted before interfering with findings of fact applies similarly to the evaluation of those facts and inferences drawn from them: Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5, at paras114 to 115.

Part of M’s case is that the judge departed from the recommendations of the Cafcass Officer in respect of the name change and the non molestation order. A judge is not bound to follow the recommendation of the Cafcass Officer slavishly, but, if departing from the recommendation, should explain why: (W v W (A Minor: Custody Appeal) [1988] 2 FLR 505).

The dicta in these cases in respect of the caution to be taken by an appellate court before interfering with an evaluation made by the court below in my judgment carry particular resonance in this case.

The parties married in 2016 and separated in October 2021, about two years after D’s birth. D has lived with M ever since, and has not seen F face to face since December 2021.

In January 2022, M applied for protective orders under the Family Law Act 1996. On 10 February 2022, a non molestation order was made by consent on the basis of no admissions, to last for 12 months. In April 2022, F applied for a Child Arrangements Order. The Children Act and Family Law Act proceedings were consolidated. A further non molestation order was made by consent (again without any admissions) on 29 June 2023 to last until conclusion of the application; it was due therefore to end upon the decision of the judge in March 2025. In August 2023, the financial remedy case was heard.

In October 2023, Recorder Daley conducted a fact finding hearing over five days, and handed down judgment in November 2023. His core conclusions were:

Both M and D were and are, accordingly, victims of domestic abuse.

The judge had over 1000 pages of documents before her, and heard the case over 3 days. M was represented by counsel, F was in person. Both parties gave evidence (in F’s case, the absence of a QLR for F meant that questions had to be put through the judge), as did the Cafcass Officer.

The judge commented at paragraph 4 of her judgment on the intensity of the parents’ dislike and mistrust of each other. She found that F did not truly accept the previous fact findings and showed no real insight into his behaviour towards M, and its impact on both M and D. She referred to F’s continuing use of ill judged language in letters to D.

She agreed with the previous judge’s findings about M that she always painted the worst picture possible of F, and that some of her criticism of F was excessive and unjustified. Her antipathy to F has intensified such that “she now completely believes it would be better for D if her relationship with – and link to – her father were completely severed”. The judge found M to be at times contradictory and self serving in her evidence. All that said, the judge accepted that F’s behaviour has had a profound impact on M, compounded by F’s lack of insight and unwillingness to accept the findings of fact against him. She concluded that M was not in a position to cope with, facilitate or promote contact.

The original Cafcass Officer who was asked to report on, inter alia, the change of surname issue, filed a report on 30 May 2024 in which she said:

The Cafcass Officer left the service before any final hearing, and a further report was prepared by a different Cafcass Officer on 25 October 2024. The judge noted that the second Cafcass Officer did not see D (unlike the first Cafcass Officer) even though some seven months had passed since D had been. The judge found the second Cafcass Officer’s analysis in some respects to be “fairly superficial”. The principal risk of direct contact identified by the second Cafcass Officer was the potential for emotional harm to D if F were to make inappropriate comments during such contact. The judge said (paragraph 94 of her judgment) that in her view the second Cafcass Officer had not given sufficient consideration to the previous judgment, the possibility of mitigating risk and the fact that F’s threatening and aggressive behaviour largely occurred during the breakdown of the marriage some years previously. The judge said that the second Cafcass Officer did not fully take on board the impact on D of having no meaningful relationship with F. However, the judge accepted the overall conclusion that D would need a high level of support for contact to be reintroduced safely.

The judge analysed in some detail the various issue before her, through the prism of the welfare checklist. She noted that D had become distressed before and during indirect contact in 2023 and 2024. D had a close bond with M and would be affected by M’s distress. In the absence of an independently supported professional service, supervised contact on its own would not work. Nor was it realistic until F undertakes perpetrator work. To force D to attend a contact centre would be likely to embroil her in further conflict and cause her emotional harm. To expect this to take place while F does not accept the findings, and has not addressed his behaviour, would not promote the relationship between D and F. She did not find (as explained at paragraph 120 of her judgment) that F will never be capable of having a relationship with D. He needs to reflect on the fact finding judgment, and access support to address his behaviour, but that is not a realistic option at this time.

Looking at all the evidence and submissions in the round, she concluded that D should live with M, and contact should be limited to indirect form only.

The original Cafcass Officer did not find any welfare based justification for changing D’s surname.

The second Cafcass Officer told the judge (paragraph 90 of the judgment) that she recommended a change of surname because she had accepted M’s account of why she wanted to change the name, without asking any probing questions or considering the possibility that this might be part of a pattern of minimising F’s role in D’s life. This, said the judge, was particularly problematic as the order for a s7 report expressly directed Cafcass to consider whether each party was motivated by a desire to promote the best interests of D.

The judge expressed herself (paragraph 91) as surprised that the second Cafcass Officer seemed unconcerned about oral evidence given by M that D now viewed her maternal grandfather as her father, and that the second Cafcass Officer had not considered the possible confusion which D might feel, particularly as, on the findings made by Recorder Daley, the maternal grandfather has a “dominating and authoritarian personality”.

The judge expressed the view that the second Cafcass Officer should have seen D, and was concerned (paragraph 92) that she did not do so because M had asked her not to, a fact to which she did not refer to in report, nor had she informed F; it only emerged during her oral evidence.

At paragraphs 108-114 of her judgment, the judge set out her decision and reasoning in respect of the change of surname. It is important, in my judgment, to view this in the context of her judgment as a whole, including her conclusion that M is seeking to erase D’s relationship with F. I reject the submission either that the judge minimised the serious findings made against F, or placed insufficient weight on the impact upon M of F’s conduct. Read in its entirety, the judgment clearly records these matters.

The judge concluded that to change D’s surname would not be in her welfare interests, and would constitute a further rupture in her relationship with F that is not justified. She noted M’s distress at seeing F’s surname written down, and the traumatising effect on her, but as the first Cafcass Reporter had said, D is very aware of her surname which is part of her identity and provides an important connection to F and her paternal heritage. She is able to write her own name. The judge said that to change D’s name would be confusing, and that it would be harmful in the context of M’s motivation to erase all reference to F in D’s life. The judge considered whether there would be practical difficulties arising out of D having F’s surname rather than that of M. She was unpersuaded, and in any event concluded that any such difficulties would be outweighed by the potential harm to D of a change of name.

I acknowledge that in reaching her conclusion not to change the surname, the judge departed from the Cafcass Officer’s recommendation. In my judgment, she clearly explained why she did so (as set out above) and was entitled, in the light of all the evidence before me, to come to a different conclusion to that of the Cafcass Officer.

I note that although the skeleton argument prepared on behalf of M for this appeal criticises the judge for not ordering, as an alternative, a double barrelled surname, in my judgment that is not a fair criticism given that the judge considered it at paragraphs 112 and 113 of her judgment, observed that M did not agree to it in any event, and concluded that changing to a double barrelled surname would be as confusing as changing to M’s surname. Moreover, the judge found that there would be a risk of M gradually dropping F’s name.

Although the judge did not expressly refer to Dawson v Wearmouth [1999] 1 FLR 167 or any jurisprudence since then, (i) the relevant authorities were cited to her, and I have no reason to suppose that during a lengthy hearing she disregarded them, and (ii) the ultimate test is the welfare of the child, a test which, on any fair reading of her judgment, the judge applied. In my view, read as a whole, the judgment sets out the relevant factors at play when considering whether to order a change of surname or not. This was a balanced evaluation by a judge who weighed up a range of circumstances, informed by the welfare checklist. It seems to me that this was quintessentially an evaluation by a judge who had the benefit of hearing the case over a number of days. The appellate court should be slow to interfere with the first instance judge’s overall conclusions in such circumstances. The judgment as a whole is a clear, coherent and comprehensive analysis.

This was, no doubt, a challenging case for the judge. Alighting upon a fair decision for D, consistent with her welfare, in the context of (i) shockingly abusive behaviour by F towards M and (ii) highly conflicted parental attitudes which must on M’s side at have been at least in part the product of such behaviour, was not easy. But that is the lot of family court judges who deal with challenging cases every day and, depressingly, routinely deal with cases involving high level domestic abuse. Family court judges are tasked with making decisions with far reaching consequences for everyone involved. This judge approached the task conscientiously, with care and analytical clarity. It is not, in my judgment, tenable to argue that the judge exceeded all reasonable bounds when reaching her conclusion.

In my judgment, there is no real prospect of success on appeal, and the application for permission to appeal should be refused.

It seems to me that M’s case is stronger on the judge’s decision not to extend the non-molestation order.

M relied on an allegation that F had breached the existing injunction in June 2024 by entering a prohibited zone. The judge was told that the CPS had decided to charge F in respect of the alleged breach. M’s counsel did not ask F about the allegation, relying instead on the fact that the CPS had decided to charge as being demonstrative of a risk. In the skeleton argument for this appeal, it is said that “M did not seek a finding that F breached the NMO by the judge, as she had no confidence in the fairness of the approach and was deeply troubled by the judge’s approach”. That does not seem to me to justify a failure to explore the alleged breach in evidence, particularly as multiple other matters were explored on M’s behalf. However, the fact that CPS decided to charge is, in my judgment, material, and the judge was wrong in seemingly ignoring that decision.

After the March 2025 Children Act proceedings concluded, a hearing took place on 28 May 2025 in the criminal court in respect of the alleged breach. F has pleaded not guilty and a trial is due to take place in February 2027. F is subject to bail conditions not to enter a zoned area where M and D live, nor to contact M directly or indirectly. Further, the police are investigating F for rape against M in respect of the events of 2015 to 2017 referred to above, and which Recorder Daley found proven, albeit to the civil standard.

The judge noted that M had alleged two breaches of the earlier injunction in April 2022, neither of which were found proven by Recorder Daley.

The judge ultimately concluded that (i) the previous alleged breaches in 2022 had not been proved, (ii) M had elected not to seek to establish the alleged breach in June 2024 by direct evidence (including cross examination of F), (iii) there was no evidence of other breaches, or of F attempting to contact M, and (iv) an extension of the injunction for any period (let alone the ten years sought by M) would not be proportionate. She assessed the risk to M of F attending her home to be “low”.

However, those factors in my judgment are outweighed by the following which militate in favour of an extension of the Family Law Act order:

Accordingly, permission to appeal should be allowed in respect of the non-molestation injunction. Going on, as I do, to consider the substantive appeal, I have come to the conclusion that the Family Law Act order should continue for 2 years i.e to 16 October 2027. I do not consider that 10 years, as sought by M, is appropriate, although a further application to extend can be made in due course, if justified.

There are two parts to this:

In respect of the Children Act costs, M’s principal point is that M had little choice but to litigate given that F denied the allegations of domestic abuse. Ultimately she was successful on some of the most serious of her allegations, from which the decision on welfare flowed. So, submits M, F should make a significant contribution to her costs.

The judge, when dealing with the Children Act costs, stated at paragraph 143 of her judgment that she would deal with the costs of the fact finding proceedings before Recorder Daley, as well as the welfare proceedings before her. This was a practical course to take. As the judge observed, the order of Recorder Daley at the fact finding stage was silent as to costs, but in circumstances where the fact finding hearing was an integral part of the continuum of Children Act proceedings, it seems to me that costs were clearly at large: Timokhina v Timokhin [2019] EWCA Civ 1284 sets out the position at law clearly and in my judgment is on the point.

The judge summarised the general position as to costs in children cases, referring appropriately to the rules and a number of cases, including Re S (a Child) [2015] UKSC 20 and Re E [2025] EWCA Civ 183. She considered litigation conduct at paragraphs 67-70 of her judgment. She expressly found that F has not “used this litigation as a means to perpetrate ongoing domestic abuse”. She concluded that F’s litigation behaviour was not so unreasonable as to take it outside the usual parameters. She noted that the proven allegations of sexual abuse at the fact finding hearing occupied far less court time than the allegations of controlling and coercive behaviour on which M did not succeed. There were aspects of M’s case which she established, but aspects which she did not establish. The judge observed that at the welfare stage it was not unreasonable for F to challenge M’s position which would have resulted in the severing of his relationship with D.

In my judgment, these were all matters fully within the evaluative and discretionary exercise carried out by the first instance judge, applying the Re S principles faithfully. Unless the decision on costs falls outside the band of decisions reasonably open to the judge to reach, the appellate court will ordinarily not interfere with the decision below. In my judgment, there is no real prospect of success in respect of the Children Act costs and permission to appeal is refused.

In respect of the Family Law Act costs, I have overturned the judge’s decision not to extend the non molestation order.

It seems relevant to me that until the hearing before the judge, F had agreed to two orders being made and no findings of breaches had been made. At the first hearing, on 10 February 2022, no order for costs was made. At the next hearing, on 29 June 2023, costs were reserved.

By contrast to the first two hearings, at the hearing before the judge, F opposed any continuation. I have found that M is entitled to a further order, and it seems to me that F should be liable for at least some of M’s costs in respect of the second Family Law Act hearing and the hearing before the judge (no order for costs having been made at the first hearing). The sum sought is £13,661. Looking at matters in the round, I will order F to pay £5,000 towards M’s costs. Accordingly, I grant permission to appeal in respect of the Family Law Act costs, and go on to make an order for F to pay £5,000 towards M’s costs.

Permission to appeal paragraph 16 of the judge’s order (change of surname) is refused.

Permission to appeal the judge’s decision not to extend the Family Law Act order is granted and the substantive appeal is allowed. I will extend the said order until 16 October 2027.

In respect of paragraph 19 of the judge’s order (costs):