H (A Child: Contact: Domestic Abuse), Re
[2024] EWCA Civ 326
Father v Mother & Anor (By his Children's Guardian)
2 August 2024
[2024] EWHC 2578 (Fam)
High Court
A dad wanted a judge to give him custody of his child. The judge said no, prioritizing the child's feelings and safety. The dad appealed, but the higher court agreed with the original judge, saying the judge made a reasonable decision based on all the information.
Key Facts
- •Father appealed Recorder Patel's decision refusing a Child Arrangements Order to transfer custody of 9.5-year-old S from Mother to Father.
- •Extensive litigation history between parents since 2015.
- •Previous fact-finding hearing (DJ Dodds) found against Father, noting his 'dictatorial and obsessive' behaviour.
- •Child made allegations of physical abuse against Father.
- •Guardian recommended change of residence to Father, but also a 3-4 month contact break between S and Mother.
- •Expert psychological report (Dr. Arora) recommended against change of residence due to potential emotional trauma for S.
- •Judge considered evidence from parents, Guardian, expert, and Father's partner.
- •Judge ultimately refused the transfer of residence, prioritizing S's short-term well-being and potential harm from the move.
Legal Principles
Appeal court will allow an appeal if the lower court's decision was wrong or unjust due to a serious procedural irregularity.
FPR 30.12
Appellate courts should not interfere with findings of fact by trial judges unless compelled to do so.
Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5
The trial judge is in a better position to assess evidence than an appeal judge.
Piglowska v Piglowski [1999] 1 WLR 1360; Re H-W (Children) [2022] UKSC 17
Judgment must be read as a whole; avoid narrow textual analysis.
Volpi and another v Volpi [2022] EWCA Civ 464
A judge's decision on child's best interests is not overturned unless no reasonable judge could have reached it.
Volpi and another v Volpi [2022] EWCA Civ 464
Whether a parent alienated a child is a question of fact, not a diagnosis; focus on specific behavior and impact.
Re C (President of the Family Division)
Judges can depart from expert opinions with adequate reasons.
Re B (Care Expert Witnesses) [1996] 1 FLR 667
Outcomes
Appeal dismissed.
The Judge's decision was within his discretion and based on a reasonable weighing of evidence, including the child's wishes and feelings, the risk of harm from a move, and the lack of guarantee that the proposed intervention would improve the relationship with the Father.