F v M

Permission to appeal may be granted where an appeal has a realistic, rather than fanciful, prospect of success. An appeal is ordinarily a review, and an appellate court should not substitute its own welfare assessment for that of the trial judge. Intervention is justified only where the decision was wrong or unjust because of a serious procedural irregularity, including an error that takes the decision outside the generous ambit of reasonable disagreement.

In welfare and relocation cases, findings of fact, evaluations of competing welfare factors and assessments of credibility attract particular appellate restraint. A judge may accept an expert recommendation while making an independent welfare assessment. However, a judge needs reasons, not compelling reasons, to depart from an expert recommendation.

The Father appealed, with permission to appeal to follow if granted, against an order of HHJ Gibbons made in the Central Family Court. The order permitted the Mother to relocate permanently with their nine-year-old twin daughters from London to City Y in Country Z, subject to protective and contact arrangements.

The appeal challenged the treatment of the independent social worker’s evidence, the findings concerning domestic abuse and coercive control, the assessment of the children’s welfare and contact, the effect of the Mother’s pregnancy and engagement, and the decision not to require a mirror order before relocation. The central issues were whether the first-instance judgment contained an appealable error of law or fact, or was unjust because of serious procedural irregularity.

1. Outcome. Permission to appeal was granted on Ground 1 only, concerning the test for departing from the independent social worker’s recommendation. The appeal was dismissed. Permission was refused on Grounds 2 to 5.
2. Appellate restraint. Under Family Procedure Rules 2010, rules 30.3 and 30.12, the court applied the realistic-prospect test and treated the appeal as a review. The welfare decision fell within the trial judge’s discretion. An appellate court must resist narrow textual analysis and should intervene in a balancing exercise only where the conclusion lies outside the generous ambit of reasonable disagreement or is otherwise wrong.
3. Evidence and welfare evaluation. HHJ Gibbons had made findings on the disputed matters, considered the welfare checklist in section 1(3) of the Children Act 1989, and kept the children’s welfare paramount. She was entitled to identify flaws in Ms Jones’s approach, reject the allegation of bias, and then undertake her own assessment while agreeing with parts of the recommendation. The appellate court could not properly reweigh the competing welfare factors or findings about future contact.
4. Error concerning the expert. The judge was wrong to state that compelling reasons were required before departing from Ms Jones’s recommendation. Re C required reasons only. That error did not affect the outcome because the judge gave reasons both for accepting and rejecting aspects of the evidence and reached her own welfare conclusion.
5. Relocation safeguards. The judge was entitled to permit relocation to City Y, refuse relocation to City X, make contact orders, and allow the move before registration of a mirror order. She was entitled to rely on her assessment that the Mother would not abuse the trust placed in her and that delay of 6 to 12 months would harm the children by leaving them in limbo.

• High Court (Family Division) — The appeal against HHJ Gibbons’s order of 21 July 2022 was dismissed. Permission was granted on Ground 1 only and refused on Grounds 2–5.
• Central Family Court — HHJ Gibbons’s judgment dated 24 June 2022, addendum judgment dated 20 July 2022 and order dated 21 July 2022 authorised permanent relocation to City Y in Country Z.