A & I (Children: Appeal: Relocation & Joint Lives-With Orders: Fresh Evidence), Re

Where domestic abuse is admitted, the welfare analysis must assess its direct and continuing impact on the parent with whom the children live, as well as its likely indirect impact on the children. The considerations in Practice Direction 12J are important but not exhaustive. Anticipated therapeutic work cannot be given material weight without evidence that it will operate within the children’s timescale. Family support may meet needs arising from abuse in a way that support from friends or colleagues does not. An appellate court may intervene where those matters were omitted from the first-instance evaluation.

The mother appealed from HHJ Cox’s decision of 10 November 2023 in private law proceedings concerning two children. The lower court refused her application to relocate from London to an area where her family lived and ordered arrangements which would become shared care. The father had admitted a history of angry, abusive and controlling behaviour towards the mother, including conduct which had frightened the children.

The appeal alleged inadequate consideration of the domestic abuse’s impact on the mother, excessive reliance on her resilience and possible therapy, and insufficient weight to the support available from her family. The mother also sought to adduce fresh evidence concerning subsequent developments. The issues were whether that evidence should be admitted and whether the lower court’s welfare evaluation was sustainable.

1. Fresh evidence. The application to admit the mother’s post-determination evidence was refused. Rule 30.12(2) of the FPR 2010 excludes evidence not before the lower court unless the appeal court orders otherwise. The principles in Ladd v Marshall remained relevant, read with the overriding objective. The evidence was unlikely materially to affect the appeal’s outcome.
2. Domestic abuse and welfare evaluation. Practice Direction 12J, paragraphs 36 and 37, required consideration of the harm suffered by the children and the parent with whom they lived, the risk of further harm, and the safety of both. The particular matters in paragraph 37 were not exhaustive.
3. The lower court considered the abuse mainly through the mother’s ability to promote the children’s relationship with their father. It failed to assess the direct and continuing effect of the admitted past abuse and the father’s 2023 behaviour on the mother herself, and the likely indirect effect on the children if she continued to feel controlled and hopeless. It treated possible therapy as relevant without evidence that it would operate within the children’s timescale.
4. The lower court also failed adequately to evaluate whether support from friends and colleagues in London met the mother’s needs arising from the abuse. Family support could be materially different, particularly as emotional support.
5. Those errors made the decision unsustainable. Grounds 1, 2 and 5 succeeded. The appeal was allowed. Paragraph 2 of HHJ Cox’s order was set aside, as was paragraph 3 in part, namely paragraphs 7–9. The matter was listed for further directions.

• High Court (Family Division): The appeal from HHJ Cox’s order of 10 November 2023 was allowed. Paragraph 2 and part of paragraph 3, comprising paragraphs 7–9, were set aside. Further directions were to be given by Ms Justice Henke.
• Central Family Court: HHJ Cox refused relocation and ordered arrangements under which the children would live with both parents in accordance with a schedule, effectively providing for shared care from May 2024.