XX v XX

An appellate court reviewing child-welfare decisions must respect the first-instance judge’s evaluative and discretionary judgment. Intervention is justified only for legal error, an impermissible factual conclusion, material failure to weigh evidence, serious procedural irregularity, or a decision outside the generous ambit of reasonable disagreement.

A judge departing from a Cafcass recommendation should explain the reasons. A non-molestation order may properly be extended where serious proved domestic abuse, a pending prosecution for an alleged breach, continuing criminal investigation and the resulting protective concerns make an extension proportionate. Costs decisions in children proceedings attract the same restrained appellate approach.

The appellant challenged three aspects of a child-arrangements order: refusal to change the child’s surname, refusal to extend a non-molestation order, and refusal to award costs. The first-instance judge had found serious sexual and other abusive behaviour by the respondent, but limited contact to indirect contact, refused a surname change, declined to extend the protective order and made no order as to costs.

The appeal concerned whether those decisions were wrong or unjust because of serious procedural or other irregularity, including whether the judge had adequately addressed the Cafcass recommendations and the evidence bearing on risk and welfare.

1. Appeal principles. An appeal under FPR 30.12 operates by way of review. The appellate court may intervene for legal error, a factual conclusion not open on the evidence, material failure to give proper weight, serious procedural irregularity, or an exercise of discretion outside the generous ambit within which reasonable disagreement is possible. The court must remain cautious when reviewing findings of fact, evaluations and inferences.
2. Surname. Permission to appeal was refused. The first-instance judge applied the child-welfare test and conducted a balanced evaluation of identity, paternal heritage, possible confusion, the mother’s motivation and the potential harm of a further rupture in the child’s relationship with her father. Although the judge departed from the Cafcass recommendation, she explained why. The conclusion was one reasonably open to her.
3. Non-molestation order. Permission was granted and the substantive appeal allowed. The first-instance judge had been wrong to appear to disregard the CPS decision to prosecute the alleged breach. That decision was material even though the breach had not been proved. The serious proved findings, the pending criminal proceedings and investigation, the possible increase in risk and fear, and the Cafcass recommendation supported a proportionate extension. The order was continued until 16 October 2027. A ten-year extension was refused, without preventing a later application if justified.
4. Costs. Permission to appeal the Children Act costs decision was refused. The judge’s assessment of litigation conduct, the mixed success of the parties and the reasonableness of contesting the welfare outcome fell within the permissible discretionary range. Permission was granted in relation to Family Law Act costs. Since the respondent opposed continuation of the protective order and the appeal succeeded on that issue, he was ordered to pay £5,000 towards the appellant’s costs, in two instalments.

• High Court (Family Division): permission to appeal the surname and Children Act costs decisions refused. Permission granted on the non-molestation order and Family Law Act costs. The substantive appeal was allowed on those issues; the protective order was extended to 16 October 2027 and £5,000 costs were ordered.
• First instance: Recorder Moys made the child-arrangements order dated 6 March 2025, with judgment handed down on 24 March 2025. The order provided for the child to live with the mother, indirect contact only, no surname change, no extension of the non-molestation order and no order as to costs.