Father v Mother & Anor (By his Children's Guardian)

On an appeal in a child arrangements case, the appellate court must ask whether the decision was wrong or unjust because of a serious procedural irregularity. It must not substitute its own evaluation of the evidence or welfare balance for that of the trial judge unless intervention is compelled.

A judgment must be read as a whole. A reasons challenge must not become an indirect merits challenge. Alleged parental alienation is not a diagnosis or a free-standing legal test. The court must determine the particular parental behaviour proved and its impact on the child. A child’s fear of a parent may be real even where it lacks an objective justification. Decisions about residence require a fact-sensitive assessment of welfare, harm, risk and potential benefit.

The father appealed against a Recorder’s refusal to make a Child Arrangements Order transferring the nine-year-old child’s residence from the mother to him. The proceedings had involved prolonged litigation, earlier findings by District Judge Dodds, expert psychological evidence and reports from the Children’s Guardian.

The father argued that the Recorder had failed to follow the professional recommendations, had given inadequate reasons, had misunderstood the evidence concerning alleged parental alienation, and had placed excessive weight on earlier findings and short-term harm. The central questions were whether the Recorder’s decision was wrong or procedurally unjust under FPR 30.12, and whether his welfare analysis and reasons were adequate.

1. Appeal dismissed. The Recorder’s decision that the child should remain living with the mother was one that was plainly open to him. The father’s grounds principally challenged the merits of the decision and the weight given to evidence.
2. Under FPR 30.12, an appeal may succeed only where the decision was wrong or unjust because of a serious procedural or other irregularity. An appellate court should not interfere with findings of fact, evaluations or inferences unless compelled to do so. It must assume, absent compelling reason, that the trial judge considered the whole evidence. The judgment must be read fairly and as a whole, without narrow textual analysis.
3. The determination of disputed facts and the child’s best interests under Children Act 1989, s.1, belongs to the trial judge. The judge was entitled to depart from the Guardian’s and expert’s recommendations, provided adequate reasons were given. The Recorder had explained why he reached different conclusions on the parental behaviour, the mother’s capacity to promote the relationship, the child’s wishes and feelings, his fear of the father, stability, self-harm risk, and the uncertain prospects of a successful transfer.
4. Parental alienation is not a helpful categorisation, diagnosis or binding legal test. Whether a parent has influenced a child against the other is a question of fact. The court should focus on the particular behaviour proved and its impact on the child. A child’s resistance or fear does not itself establish alienating behaviour. Fear may be genuine and harmful even where objectively unjustified.
5. The welfare evaluation involved balancing the immediate harm of removing the child from the mother against the uncertain longer-term benefits of restoring the relationship with the father. The allocation of weight between competing welfare factors was for the Recorder. The absence of certainty that the proposed intervention would succeed was a legitimate consideration.
6. The Recorder was entitled to treat the earlier findings of District Judge Dodds as material historical evidence and to assess whether the father had moved on from them. The reasons were adequate and all grounds of appeal were rejected.

High Court (Family Division): Permission to appeal was granted by the President of the Family Division on 26 April 2024. The appeal against the Recorder’s refusal to transfer the child’s residence was heard on 11 July 2024 and dismissed.