Y v E (Reasons for Departing from Cafcass Recommendation)

An appellate court should intervene in a child-welfare decision only where the decision was wrong, procedurally unjust, or outside the generous ambit within which reasonable disagreement is possible. A first-instance judge may depart from a Cafcass recommendation, provided clear and adequate reasons are given. The judge must evaluate the evidence against the welfare checklist and treat the child’s wishes and feelings as one factor, without any hierarchy or presumption of precedence. Their weight is fact-sensitive and may be substantial, but they are not automatically determinative. In relocation and child-arrangements cases, the welfare assessment must be global and holistic.

The father appealed against an order made by Recorder Clapham on 22 July 2025 concerning the living arrangements and schooling of the parties’ two children. The Recorder ordered that, during school term, the children live with their mother from Monday to Friday and with their father from Friday to Monday, and attend school in the mother’s county. This departed from a Cafcass recommendation that the children live with their father during the school week and with their mother at weekends.

Permission to appeal had initially been refused by the Recorder, but was granted on the papers by Trowell J on 27 August 2025, together with a stay. The appeal challenged the reasons for departing from the Cafcass recommendation, the treatment of the children’s wishes and feelings, and the holistic evaluation of relocation and child arrangements.

1. Appeal dismissed. The stay was discharged. The Recorder’s order was a discretionary welfare determination and could be overturned only if wrong, unjust because of a serious procedural or other irregularity, or outside the generous ambit within which reasonable disagreement was possible.
2. The Recorder was entitled to depart from the Cafcass recommendation. The court is the final arbiter of welfare and specialist Cafcass evidence remains advice. The Recorder gave clear and adequate reasons, including changes since the recommendation, the children’s more settled wishes, the mother’s changed circumstances, the father’s failure to facilitate additional telephone contact, the CPOMS material, and the practical difficulties in the recommended arrangements.
3. The Recorder’s treatment of the children’s wishes and feelings was balanced. He considered their ages, understanding, consistency, and the fact that their views were genuinely held. Section 1 of the Children Act 1989 does not create a hierarchy among welfare factors. The children’s wishes could carry significant weight, but the Recorder did not treat them as determinative and relied on other welfare considerations.
4. The Recorder conducted the required holistic evaluation of relocation and child arrangements. Reading the judgment as a whole, he identified the central welfare issue, considered the evidence, made findings, applied the welfare checklist in section 1(3) of the Children Act 1989, and balanced the competing arrangements, including their effect on the children’s relationship with their father.
5. The appeal principally challenged the weight given to the evidence. That was insufficient to establish appellate error where the Recorder’s findings were open to him and his reasoning was properly explained.

• High Court (Family Division) — Appeal from the order of Recorder Clapham dated 22 July 2025. The appeal was dismissed and the stay discharged.
• Permission stage — Permission was refused by the Recorder but granted on the papers by Trowell J on 27 August 2025, who also granted a stay.