PP v AB

It is unnecessary for me to set out for the purposes of this appeal the detailed history of the parties and their relationship, although I note that it is a history which stretches back over some time and as a result I have therefore had a significant amount of documentary evidence placed before me.

In outline only, the litigation in the court below and the appeal which comes before me today comes about in the following way. The parties' relationship ended in March 2024. The three children have since lived in a shared care arrangement between their mother and father in Buckinghamshire. That is a shared care arrangement in which their time is spent broadly speaking about 50:50 with each parent.

In July 2024, that is to say last year, the mother applied for permission to relocate the children to Northern Ireland where her family and a wide support network which would be available to her are based. The father opposed the application, seeking to maintain the children's residence in Buckinghamshire.

The matter has been largely case managed by HHJ Brown and was ultimately heard by Recorder Foster over two days in April to May 2025. The Cafcass officer who had prepared a report recommended against relocation. The Recorder, after hearing oral evidence from both parents and the Cafcass officer, reserved judgment until June. On delivering the judgment he permitted the relocation and then made detailed arrangements for contact.

Before me, the father advances three grounds of appeal which in the skeleton produced for this hearing appear under the headings as follows:

The thrust of those three subheading arguments may conveniently be summarised as

I can take this relatively shortly because there is no dissent between counsel today as tothe legal principles. The applicable principles in relation to the position of the courtbelow are not in dispute. The court's paramount consideration is the welfare of the children, per the Children Act 1989 section 1. The court must conduct a holistic, comparative evaluation of the realistic options and give the appropriate weight to each factor of the welfare checklist. I have been referred, amongst other things, to L v F [2017] EWCA Civ 2121, Re L (Relocation: Second Appeal) [2018] 2 FLR 608, Re F (AChild) (International Relocation Cases) [2017] 1 FLR 979, and Re C (InternalRelocation) [2015] EWCA Civ 1305.

In relation to the appellate jurisdiction, an appellate court will only allow an appeal where the decision of the lower court was wrong or unjust because of a serious procedural or other irregularity or that there is some other compelling reason to allow it to be heard. See Family Procedure Rules 2010, Rule 30.12(3). Importantly, an appeal is not an opportunity to reargue the case that was before the court below and the question is one of whether the Recorder's decision falls outside the range of reasonable discretion which she or he has.

Importantly, it might well be that another judge may have made a different decision or, indeed, the same judge made a different decision on another day or, on the same evidence, come to the opposite conclusion, but that is not the measure by which the appeal is to be determined. I must be satisfied that the Recorder was wrong and I have been careful in that respect to remind myself when reading the documents and listening to submissions not to approach the case by considering whether I would on the evidence have reached the same conclusion as Recorder Foster or a different conclusion.

The appellant father argues that the Recorder permitted relocation without sufficient evidence on key practical issues, as I have outlined above. In particular, there was no documentary evidence of where the children would live or go to school in Northern Ireland, no details of the suitability of what was proposed was available. Whilst the mother’s approach (accepted by the court below) was essentially that she was still arranging the detail of those things, there was produced no evidence of the sort the court would ordinarily expect to see and be able to scrutinise in a relocation case such as medical, GP and other social provision.

There was not placed before the court objective evidence of the mother's mental health or of the risk of deterioration, if any, if she remained in Buckinghamshire or of any risk of relapse of those conditions with which she had in the past been diagnosed. The mother's own evidence before the court is that she is well.

The appellant father argues that the Recorder relied solely on the mother's oral assertions which were uncorroborated and in some respects inconsistent or contradicted by other evidence.

In relation to the continuance of the relationship between father and children , the mother's proposals for contact and practical arrangements, argued the father, changed at the last minute undermining, so it is said, their credibility and, more importantly for the purpose of this appeal, making scrutiny impossible.

The father expands his argument that the Recorder had wrongly rejected the clear and consistent recommendation of the Cafcass officer who advised that to permit relocation for these children at this time would be emotionally unsafe and harmful and did not sufficiently articulate his own reasons for disregarding, as it is said he did, that risk. The father noted that the children had lived in Buckinghamshire all their lives, they are settled at school, have a strong relationship with both parents and they have already experienced significant upheaval in their short lives. Further change would be destabilising to them.

The mother's conduct, it is said, in 2024 which is the subject of a disagreement between the parties as to the impact of it in removing the children without notice, misleading the school and the father and refusing contact, on the father's case, raises concerns about her willingness to promote the children's relationship with the father if she is allowed to relocate. The father does not have confidence in this. Furthermore, father in his detailed skeleton argument sets out the way in which the financial situation makes the mother's proposals for contact unworkable as he will not be able to afford frequent travel, neither would he be able to book long periods of five to six weeks at a time off work. The Recorder it is argued gave insufficient weight to this.

The respondent mother in contrast, in her equally able and helpful skeleton argument, contends that the Recorder conducted what was on the proper view a thorough, holistic, welfare analysis, applying himself to the correct legal principles. He was entitled to accept oral evidence in the absence of documentary corroboration and there is no need for a judge to have corroboration of that which is given orally. The law, says Mr Fletcher, is clear as to that where credibility is not in doubt. See Re B [2013] UKSC 33, per Baroness Hale.

I pause there to say that before me, the appellant is clear that the mother's credibility is not something that is without doubt in that the father puts it issue, but it is nevertheless right when the mother argues in her skeleton argument that either as to credibility or otherwise, there is absolutely no requirement for documentary corroboration of any aspect of oral evidence. It is a matter for the trial judge whether they accept it subject to appropriate reasoning and judgment.

As to which, the mother argues third, that the Recorder gave cogent reasons for departing from the Cafcass recommendation, especially, says Mr Fletcher, regarding the mother's mental health and likely support network in Buckinghamshire as distinct from Northern Ireland. The Recorder was entitled to find that the mother's support network in Northern Ireland would enhance her ability to meet the children's needs and that in Buckinghamshire, her isolation posed a real risk to her mental health and thereby to her parenting capacity by the knock-on effect of it. It, of course, is perhaps self-evident that the extent to which the mother's mental health is important in this case for these reasons is to do with how she is able to meet her children's needs and that is the reason why it has become the focus of attention.

Mr Fletcher goes on in his document to observe that the Recorder's order made after the judgment provides for what is described as ‘substantial’ time with the father and that includes holidays as well as indirect contact when the father is not in Northern Ireland, albeit that he properly concedes that that changes fundamentally the nature of the relationship of the children with their father. Mr Fletcher reminds me that that is very often the case in cases of relocation.

The alternative, it is submitted, obliging the mother to remain in Buckinghamshire, isolated and without support from her family network would be detrimental to her mental health and by extension, as I have just articulated, to the children's welfare. Mr Fletcher also argues that the mother has, since the hearing before Recorder Foster, secured school places and a tenancy in Northern Ireland and seeks permission on her behalf to adduce this evidence under the principles in Ladd v Marshall if required. His application in that respect has refined somewhat since the skeleton which was provided to me yesterday and he pursues it now only in the event that I allow the appeal on the basis of the lack of housing and schooling information alone, his position being, as I understand it, that it would then permit me rather than remitting the matter for rehearing to substitute my own decision. That is an aspect I will return to later.

The way in which I have in this judgment characterised the arguments as advanced by the appellant and the respondent is necessarily, in view of the time available today, abbreviated. I have further had and taken the opportunity carefully to review those aspects which have been set out in support of the appellant's ground 1 as to which I have read carefully [28] through to [59] of the skeleton argument in relation to mental health, [61] through to [72] in relation to finance and housing, [73] through to [79] in relation to conduct and behaviour in 2024, in particular in relation to the way in which that goes to credibility, [80] to [86] in relation to the children's dysregulated behaviour and the potential of harm to the children and the balance of ground 1 at [87] through to [92] as to the mother's ability to promote the children's relationship with their father.

I likewise have considered ground 2 which is set out from [90] through to [108] in relation to the evidence of Cafcass and ground 3 in relation to the misapplication, as is said by the father, of the law from [109] onwards to [116].

Similarly, for the avoidance of doubt, I have had the benefit of Mr Fletcher's skeleton which again I have in abbreviated form set out in considering his oral submissions. He has in his written response dealt with the aspects raised in relation to ground 1 from [17] of his statement, considering the mental health aspects from [19] through to [26], financial capacity and children's needs aspects from [27] to [29], housing from [30] to [32], the incident in 2024 from [33] through to [34], children's dysregulation from [35], completing their ground 1 and the response as to ground 2 which runs from [36] of his skeleton through to [48]. From [49], I find the response to the contention that there was erroneous application of the law.

I pause to say that lest anyone reading this judgment should think that there is an imbalance of submission, it is the case that much of that which is set out in Ms Wood's skeleton argument in relation to reference to judgment and transcript has the full quote in it and Mr Fletcher's has the page reference as to where I may find it which is why it looks as though the documents are of different characters in terms of detail. I am satisfied that they are not, as should anyone else reading this be satisfied.

Having this afternoon, after having the benefit of hearing oral submissions, read those written submissions in the skeleton arguments again, I have reflected on all of the arguments written and oral made on behalf the appellant and respondent before reaching my conclusions.

The issue of the mother's mental health assumed prominence in the Recorder's thinking as can be seen from a number of passages in his judgment and as to the transcript of the evidence given at the hearing. I have been taken by counsel to each of those passages on which each rely and, as I have just said, I have read very carefully the written evidence that they have advanced in relation to them.

There has been a difference of approach between the parties at this hearing as to what the Recorder should be taken mean when he is considering the mother's mental health, the risk to it, and the knock on effect on the children of the mother's mental health deteriorating. The appellant's skeleton argument raised the following key submissions about certain important points.

There was no expert or objective medical basis for which the Recorder was able to base his thinking, so says the appellant. It is drawn to my attention that there was no report and expert evidence before the court about the mother's mental health. In oral submissions, I established that no application had been made by either party. The likelihood of a mental health relapse or the impact on her mental health of living in Buckinghamshire or Northern Ireland accordingly was evidence that the Recorder could only take from the evidence that was before him and so it is argued by the father that it was not open to him to reach the conclusion he did in respect of that. The only medical evidence in fact was that the mother had been discharged from psychiatric care in 2022 and is not under current treatment. Her own evidence was that she was currently not taking any medication.

The position this afternoon, as I confirmed with Mr Fletcher on her behalf, is that her own position in front of the court below was throughout that her mental health was good, that she had recovered from a serious episode in 2022 and there was no continuing concern or cause for concern.

The father also argues that the Recorder conflated notions of happiness, wellbeing and mental health and in those respects, fell into significant error and blurred the distinction between ordinary unhappiness or emotional upset and clinical mental ill health and risk.

He also, so says the father, ignored contradictions and credibility. I have already alluded to the way in which this is set out in the detailed skeleton and so I highlight here only one aspect of it where the father, through counsel, says this in the skeleton:

The argument there is developed to say that there is within the judgment circular and problematic reasoning in that the court placed too great an emphasis on an assumption of the mother's mental health relapsing and the children’s welfare suffering if the court made its decision adverse to her and that that was an approach which the father, through counsel, submits would mean that any parent who asserted they would be unhappy, disadvantaged or emotionally distressed if not permitted to relocate would have what is described by the father as the trump card and it is pointed out that that is not consistent with the law.

The father, as I said, also argues that there has not been in those circumstances rigorous scrutiny and that disproportionate weight has been given to the mother's feelings to the exclusion of other powerful factors when balancing and considering the welfare factors, bearing in mind that the children are the court's paramount concern.

Mr Fletcher, who has addressed some of these matters already in his skeleton, reminded me in his able oral submissions today that very often these days, people speak colloquially of mental health, happiness, emotional wellbeing, as if they are all interchangeable and so one should not criticise, or at the very least be slow to criticise, the Recorder for conflating those concepts and nor should one assume that he is talking about a diagnosed mental health illness when he uses that phrase in his judgment. Furthermore, submits Mr Fletcher, whatever the word for it, what matters is the impact on the child or children concerned. I accept to an extent that Mr Fletcher is undoubtedly right about the modern day colloquial use of language although I do not necessarily agree that that means it has a place in the Family Court if what is being discussed is in fact the likely impact of an earlier mental health condition.

I naturally accept that the impact on the child or children of an issue is the focus of the court's attentionand that is a manifestation of the welfare paramountcy.

I have paused to reflect whether the appellant’s case as advanced in Ms Wood's able skeleton, had too narrowly constructed the Recorder's references to mental health in the light of Mr Fletcher's submissions and development of that point on the language. But there are however passages in the judgment which assist with that. At [92] of the Recorder's judgment, he in assessing the mother's mental health says this:

Those passages can only sensibly be read, in my judgment, as the Recorder contemplating the mother's past mental health diagnosis and ill health rather than, for instance, emotional distress or upset. Albeit I understand why Mr Fletcher makes the submissions he does about the way in which people speak of mental health sometimes lacking precision of language, I do not, in reading those, regard the Recorder as talking about a wider issue on those examples which emerge from the passages that I have just quoted.

The evidence that he did have before the court was that the mother was well and had required no medication or treatment for the last three years. He did not have evidence as to the extent to which, if at all, the condition which she had previously been diagnosed with was susceptible torelapse. I agree, of course, that no judge is limited to only written or only expert evidence and that oral evidence is of significant benefit to the trial judge. But on this aspect, this aspect of mental health condition and the susceptibility to relapse or deterioration and the knock on effect of that as to the mother's capacity to meet these children's needs, he was forming his own view where the only evidence he had came from: the oral evidence of mother that she was fine at the moment; from the father who had previously said that she had underplayed her mental health struggles and who now said in effect, "I'm not a mental professional. Idon't know,"; and from the Cafcass officer who the Recorder felt had had insufficient regard to it.

In relation to the way in which the Recorder formed his conclusion on the mother's mental health in which it is apparent from the reading of this judgment his decision is significantly rooted as to relocation, I accept the father's submissions for the following reasons.

The Recorder's findings about the mother's mental health risk were not supported by expert or clinical evidence and in circumstances where the other evidence on which he sought to rely was insufficient to let him do so and his own reasoning in the judgment does not safely found the decision that he came to.

I do find in this case that the Recorder conflated the mother's subjective unhappiness with clinical risk and he treated her wish to relocate as likely to be very nearly conclusive about her parenting capacity or at least largely determinative of it. I am less persuaded that the aspect of the mother's mental health and its impact on the case is one in which the Recorder fell into error by not addressing the contradiction in her case or her credibility on this point. It may be an aspect in which he did not consider in sufficient detail the effect on her credibility but it seems to me that the real problem in relation to the conclusion he formed of her mental health is the evidence and lack of it on which he did that.

I do accept to a degree that the Recorder's approach is problematic in relation to the circular reasoning. One of the reasons which is important to identify what it is the Recorder is relying on in forming the conclusion he does about the mother's mental health, the risk to it and therefore the risk to the children, is that in allowing any parent to assert that their mental health - in the colloquial sense used by Mr Fletcher – would suffer if not permitted to relocate, that is problematic and unsatisfactory unless there is objective evidence to underpin it. It follows that the Recorder in this aspect did not, as I see it, apply the rigorous scrutiny required in a relocation case and did not have or seek or require that he need to have it proper evidence of risk on the mother's mental health.

For these reasons and in particular for the reasons so clearly articulated in the appellant's skeleton argument which on this point I accept, I find that the Recorder's approach to the mother's mental health was wrong in law and unsupported on the evidence.

I move now to the Recorder's assessment of harm or risk of harm to the boys if relocation as permitted, recognising as I do that it is inextricably linked to the issues that I have just been considering in relation to the mother's mental health.

In this respect, that is to say the risk of harm to the boys if relocation were permitted, Mr Fletcher points to the Recorder's judgment at [99] to about [102] where he considers, as he is entitled to, the Cafcass report on the emotional harm to the boys in losing the current character of their relationship with their father -- because as I said, it is essentially a 50:50 shared care arrangement -- and moving to the position where they are seeing him on school holidays. Mr Fletcher reminds me, and he is absolutely right about this, that almost all relocation cases by definition involve somebody's relationship with their child being changed in its character. So the very fact that the nature of the father's relationship with the children will be adversely affected, if it is otherwise in their interests to move, is something that is not at all unusual.

The Recorder's conclusion at those passages of the judgment was that the children's relationship with the father was a strong one. It would not be weakened by the relocation and he relies heavily in that part of the judgment and elsewhere on the fact that the boys' relationship survived an interruption of six weeks, to which I have made reference earlier, at an earlier stage when their mother removed them. It is well recognised, of course, that judges are perfectly entitled to depart from the recommendations of Cafcass officers, experts and others who provide reports and advice to the courts also, but in doing so, there must be reasons given for that departure and I am satisfied that here the reasons are insufficient.

Before reaching that regrettable conclusion, I considered also the way in which the Recorder had considered the question of harm in relation to the welfare checklist. There is, of course, no reason at all why any judge has slavishly to recite all that appears in section 1(3) of the Children Act but in this case, where the harm to the children either of relocating and suffering emotional harm by loss of their relationship with their father or by not being permitted to relocate and suffering harm as a consequence of a relapse or deterioration in their mother's health, as it was argued, that aspect of welfare is a prominent feature and it is an aspect which therefore is one on which the learned Recorder does have to give significant consideration to as directed by statute under the welfare checklist.

On reviewing the way in which the Recorder has considered harm, I am completely satisfied that he has considered with very great care, in great detail and with significant sensitivity the prospect of harm to these three boys if there is the adverse effect on their mother's mental health that he concludes there might be. But what I also find, I regret to say, is that there is little and, certainly in my judgment, insufficient in the way of balanced consideration of the harm the other way, i.e. the emotional harm to the children by the damage to their relationship with the father if they do relocate and it is therefore, in my judgment, insufficient to show how the Recorder arrives at the conclusion that the potential for emotional harm from that outcome is displaced in his reasoning.

I am not satisfied that I can see that this Recorder balanced properly the mother's asserted risk against the emotional harm to the children and their father of the loss of their relationship in its present form or something near to it.

It is right, as Mr Fletcher took me to, that Recorder Foster did set out his reasons for departing from the Cafcass recommendation in detail. By way of illustration only, he says this:

I note that the Recorder in his judgment described the Cafcass analysis as binary rather than global and that is what had preceded the quote that I have just read out suggesting that Ms Leite was too focused on the children's relationship with their father and not enough on other factors.

I, having reviewed the transcript and the judgment, I find that in fact the criticism that her analysis was too narrow and insufficiently global ignores that the Cafcass officer both in her report but also in the evidence she gave was able to turn her mind to the wider issues of the mother's support network, her feelings and the practicalities of the option. The learned Recorder in disagreeing as he is entitled to with her conclusion, did not, on my reading of his judgment engage with the substance of the welfare analysis, neither did he address the specific risks that she identified. It has been submitted to me that in circumstances where the Recorder does not accept the risk analysis of emotional harm to the boys that the Cafcass officer finds, he is under more of an obligation set out his own risk analysis contrary to it on the basis of which he rejects it, as he is entitled to.

I am reminded on behalf of the appellant in this case that this is not a case in which the Recorder is, at the end of the day, running short of time, giving a judgment in an ex tempore way in which he cannot be expected to reflect on all that he has heard and read and give his reasons in a clear and coherent way. He is a careful judge who reserved his judgment for more than a month and had the time to reflect on it. I accept the submission made by Ms Wood that, as it happens in this case, albeit that no judge is required, as I say, to go through every part of the welfare checklist, the Recorder's own welfare analysis was in fact less global than that which he had received from the Cafcass officer. In those circumstances, I am satisfied that whilst he is, of course, not bound to follow the Cafcass recommendation, there have been insufficiently clear and cogent reasons given for his departure from it in this particular case.

It follows from all that I have said that I will allow the appeal on grounds 1 and 2 to the extent that the evidence of the intended relocation before the court at the time of the hearing was not of a character, having in mind the other factors in play as to emotional harm and mental health matters, that the Recorder should have accepted.

It is, in my view, extraordinary that in a relocation case there was not clear evidence of intended living, schooling and housing arrangements and so on, as I have already alluded to. I do not accept the submission that there was entitled to be taken by the Recorder to this a broad brush approach such that each party was able to give the outline of their intended arrangements rather than the detailed approach that one would ordinarily see in a relocation case because one of the applications the court was hearing here was an application for permission to relocate. Mr Fletcher is right when in connection with his Ladd v Marshall application he says he is remedying a deficiency and the reason he is right is because, in my view, the evidence before the Recorder was deficient. I accept also that there was a live aspect of credibility which was connected with this absence of evidence of intended living arrangements but that is of less consequence to me in this part of the hearing at this stage. It is unnecessary for me to detail here what would be my approach to the omission of material as sought by Mr Fletcher on the Ladd v Marshall basis to remedy the deficiency had this been the only basis, that is to say the lack of this information, on which I allow the appeal because since I allow it on other grounds, I am not in that position. But in outline, I do regard this as something that warrants comment.

It is not in my judgment, satisfactory to produce only at appeal and only to stave off if the appeal is successful the possibility of rehearing information that should have been available at the previous hearing in the court below. In my judgment, it would not satisfy the Ladd v Marshall test, since I do not see that with reasonable diligence that evidence could have been produced and made available at the time. For the avoidance of doubt, I do not accept the mother is properly characterised as acting as a litigant in person throughout and I simply do not understand why, for example, if it is said that a tenancy was secured in Northern Ireland at the time of the application, which I remind myself is July 2024, it had not been produced in the course of proceedings. Either way, it is unnecessary for me to go on and consider it further but I have grave doubts as to whether that is material that should properly have been sought to be admitted by reason of the Ladd v Marshall test.

It is unnecessary, having allowed the appellant's appeal on grounds 1 and 2, for me to go on and give separate consideration to ground 3 which, in my judgment is, broadly speaking, subsumed into those aspects which are contained in grounds 1 and 2.

I will direct that the case is to be remitted for a rehearing before a different judge and I will make contact with the DFJ in order to secure the earliest possible listing.

Mr Fletcher makes what he acknowledges is an unusual application if I am against him and that is this: the children went to Northern Ireland on holiday by agreement on 5 August. It is not suggested by Mr Fletcher that they were other than on holiday and by agreement. It is submitted that they should be permitted to remain there pending the outcome of any rehearing. I regard that proposition with some disquiet because it is characterised in this way; that if the children are permitted to remain there pending a rehearing and on a rehearing, a judge properly directing herself, comes to the same view as Recorder Foster, then if the children have been allowed to remain in Northern Ireland, it means that they will not have had an unnecessary move back to England, only to go back to Northern Ireland again. That is, of course, absolutely right but it is not necessarily the case that they, the judge properly directing herself, will come to the same view as Recorder Foster did and if the children remain in Northern Ireland and the judge hearing the remitted case comes to the contrary view, what will happen then is that the children will move back to England having spent longer in Northern Ireland and perhaps on some arguments, it later being suggested, having established a completely different status quo. That would be a most unfortunate state of affairs as well. I accordingly think that the appropriate thing is for the children to have exactly what I hope have been told they are having now which is a holiday.

Of course, I recognise that having arrived a point where the appeal has been allowed, that does mean that decisions which had been taken, which it was said to me by Mr Fletcher had to be taken by the mother at a time when what was known was the decision of the Recorder but not yet the outcome of an application for permission to appeal and a stay, that things have been packed up and matters have changed. That may be so but in fact, it cannot have been outwith anyone's contemplation that there was a real risk that could not be sensibly ignored of an appeal, since the father had sought permission to appeal even from the trial judge in the handing down of judgment. Those matters are again unfortunate but will have to be managed.

Those will, I hope, be sufficient directions for counsel to put into an order. I am comforted to know that the children's names remain on the school roll in England contrary to what appears to have been a misunderstanding earlier. I invite counsel please to reduce the order that I just made to writing and to include a direction that the matter is to be relisted for a rehearing before a different judge.