NEUTRAL CITATION NUMBER: [2025] EWFC 115 (B)
THE FAMILY COURT
SITTING AT OXFORD
heard on 17th to 19th march 2025
HANDED DOWN ON 3rd APRIL 2025
Before Her Honour Judge Owens
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F
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M
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The parties and representation:
The Applicant, F, represented by: Ms Shillingford, Counsel
The First Respondent, M, represented by Mr Nwokedi, Counsel
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Judgment
This judgment is being handed down in private on 3rd April 2025. It consists of 24 pages and has been signed and dated by the judge. The Judge has given permission for the judgment (and any of the facts and matters contained in it) to be published on condition that in any report, no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name, current address or location [including school or work place]. In particular the anonymity of the child and the adult members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that these conditions are strictly complied with. Failure to do so will be a contempt of court. For the avoidance of doubt, the strict prohibition on publishing the names and current addresses of the parties and the child will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain.
Introduction
1. This is a final hearing in private law Children Act proceedings. The parties are the two parents, F and M. The proceedings concern their child, A, who is now aged 12. Both parties have made applications, though F's application was the first in time followed by those of M.
Background
2. M and F were in a relationship between 2009 and 2013. A is their only child. In 2019 M applied for permission to relocate A to elsewhere within the UK and to change his school as a result. This application was refused by me in July 2019, and I gave a full written judgment at that point to explain that refusal and the consequential Child Arrangements Order for A to live with each of M and F in this area. Parties subsequently varied this Child Arrangements Order by consent in terms of the precise division of time, but A remained living in this area. Both the 2019 Child Arrangements Order and the subsequent agreement resulted in A spending more term time in the care of M but the order was properly described as a shared lives with order.
3. In 2019 M had married but unfortunately by 2022 this marriage had ended. It seems as if she sought to potentially relocate with A again at this point, but there was no court application and ultimately A did not move.
4. In August 2024 F applied for a Prohibited Steps Order (PSO) to prevent M from removing A from his school, for a variation to the July 2019 Child Arrangements Order, and for a Specific Issues Order (SIO) in relation to medical treatment and schooling. F also lodged a C1A making allegations of harm against M. This led to an urgent hearing on 27th August 2024 before Justices who granted a PSO to prevent M from relocating A from this area or removing him from his school. The case was listed for a First Hearing Dispute Resolution Appointment (FHDRA) before a District Judge on 15th October 2024.
5. On 2nd October 2024 M again applied to permanently relocate A within the jurisdiction, to change his school to one in the new area, to vary the Child Arrangements Order for A to live with her, for a Prohibited Steps Order to prevent F from removing A from her care, and for 'a section 7 report to be carried out by an Independent Social Worker (ISW)'. M also lodged a C1A making allegations of harm against F.
6. At the FHDRA on 15th October 2024, DJ Wakem consolidated both applications under one case number and made various case management directions. The case management directions granted M's application for the instruction of an Independent Social Worker (ISW), Judi Lyons, to prepare a report but did not record what questions the ISW was to address in that report, nor was there any draft letter of instruction before the court and, whilst the parties were directed to file evidence in support of their applications and in response to the other parent's application in advance of the ISW report, no statements from them in response to the conclusions in the ISW report were directed. It seems as if neither the parties' legal representatives nor the Court noticed that section 7 of the Children Act 1989 only refers to a CAFCASS officer or appointee of the Local Authority preparing a report. The application by M was not compliant with Part 25 of the Family Procedure Rules, and this seems to be why there was no clarity in the order around what the report was to address and no provision for a letter of instruction. No page limits were imposed on the statements to be filed and no request made to increase the bundle page limit beyond the normal maximum 350 pages permitted by PD27A. No pre-trial review was directed either and the case was to be listed for a 3-day final hearing before me if available since I had dealt with the 2019 proceedings. I am not quite sure why that was felt necessary nearly six years after my last involvement in the case, but since there was a potential to vary an order made by a Circuit Judge allocation would ordinarily be to a Circuit Judge under the relevant allocation guidance. The case was duly listed for final hearing before me on 3rd, 4th and 5th March 2025 but unfortunately had to be moved to 17th to 19th March 2025 due to judicial ill-health.
7. F applied on 4th March 2025 to adduce further evidence and for permission for the bundle to exceed 350 pages. Consideration of these applications in early March was the first time that I was involved in these proceedings. Given the chaotic state of the potential court bundle and the absence of a clear witness timetable or template I directed that there should be an urgent Directions Hearing to consider F's application and to deal with the size of the bundle etc in an attempt to ensure that the listed Final Hearing was effective. The ISW report had also not been filed with the Court as directed, though it seems it had been shared with the parties. The first available date for that urgent Directions Hearing was 14th March 2025 and it was possible with the considerable assistance of both trial counsel to reduce the bundle down from something that was considerably in excess of the maximum 350 page to a much more manageable maximum of 402 pages, split into a main bundle with a supplemental bundle containing mainly the parties' exhibits.
8. The size of the bundle was not helped by the extraordinary length of the ISW report which runs to some 67 pages and is far longer than the normal maximum length permitted under PD27A (40 pages). As I've already noted, the purpose of the instruction of the ISW was not clear to me on first reading the papers either and is also not clear from the report itself. It is largely comprised of a very detailed log of interviews conducted by the ISW with M, F and A (D13-D57, some 44 pages), with the ISW addressing her instructions over some 5 pages (and those instructions are simply referred to as the various applications, A's wishes and feelings, and "any other matters relevant to the Court's determination of these proceedings"), with an analysis of the welfare checklist in relation to A covering barely three pages in total.
9. Despite the last minute Directions Hearing on 14th March 2025, M applied to adduce further documentary evidence on the morning of 17th March 2025. This evidence was an updated summary school report from 10th March 2025 and F did not oppose its admission. As the last school report was summer 2024, and one of the issues in the case was how well the current school is meeting A's needs and this application was not opposed, I permitted the last minute admission of this evidence.
10. In addition to the evidence in the reduced bundle, I have heard oral evidence from the ISW, M and F.
Parties' positions
11. F opposes M's application to relocate A within the jurisdiction. He does not agree that A should change school to one in the new area. He also seeks variation of the 2019 child arrangements order so that A lives with him in term time and spends alternate weekends with M of which one in four is in this area and one in four is where M has moved to. F offers to provide accommodation for A and M for the one in four weekends spent in this area. Holidays to be shared. He opposes M's specific issue application with regard to A moving school. He agrees that A should receive medical treatment as now agreed by M, and that treatment should take place on 8th April 2025 with the precise form of the treatment to be determined by the treating clinician in their medical determination of what is in A's best interests. The identity of the clinician in question is also agreed. He also sought a prohibited steps order to prevent M from posting images and videos of A in the public domain for commercial purposes without his consent, but accepts that neither parent should use A's image in the public domain for commercial purposes or in connection with their business without the consent of the other parent. In her opening note prepared for the urgent Directions Hearing on 14th March 2025, Ms Shillingford raised the possibility of the Court considering a section 91(14) order as this was now the third time that M had sought to relocate A. There is no application before the Court as Ms Shillingford accepted. It was clearly something not ventilated before DJ Wakem on 15th October 2024 either. Ms Shillingford asked for the Court on 14th March 2025 to consider an order of its own volition and to give an indication accordingly but accepted this was difficult before the Court had had a proper opportunity to consider the evidence. The issue of a possible section 91(14) order was therefore explored by Ms Shillingford in evidence and submissions.
12. M seeks permission to relocate A from this area to live with her within the jurisdiction. She also seeks a specific issue order to change A's school to one in the new area and proposes that any transition to the new area should take place over the summer holidays with a start in the new school in September 2025 to minimise interruption to his education. During the transition arrangements would remain as now. She proposes that, once the transition has taken place, A would spend every alternate Friday after school to Sunday (or possibly Monday morning) with F during term time. A would then spend 65% of the Easter, Christmas and summer school holidays with F. Half-term holiday proposals would depend on whether M was permitted to change A's school to a particular school (school B) in the new area. If that was permitted, then she proposes that the autumn half term would be split equally with the spring and summer half term holidays alternating. Otherwise half term holidays would all be split equally regardless of which other school A attended because the schools now in question all have longer half term holidays. Her proposals for the time that A would spend with her if her application for relocation is not granted are the same as she proposes for the time that A would spend with F. She now agrees to the medical treatment required by A, including the clinician concerned, the clinician exercising their medical best interests decision about the precise form of procedure required, and the date of the procedure. She is concerned that the procedure is as minimally invasive as possible but is agrees to leave that decision to the clinician at the time. She accepts that neither parent should use A's image in the public domain in connection with their commercial enterprises without the other's consent. She does not oppose the making of a section 91(14) order.
Relevant legal considerations
13. At a final hearing such as this the Court must consider the welfare checklist under section 1(3) of the Children Act 1989. The child's welfare is the paramount consideration of the Court, not the welfare of either parent. In addition, when considering relocation cases, the authorities of Payne v Payne [2001] 1WLR 1469, K v K [2011] EWCA Civ 793, Re F (international relocation cases) [2015] EWCA Civ 882, and Re C (internal relocation) [2015] EWCA Civ 1305 are all relevant. These set out that the same test applies whether a Court is being asked to consider internal or international relocation, and that the child's welfare remains the paramount consideration irrespective of other considerations. A Court may be likely to find some of the considerations established in Payne v Payne useful, but these are not an exhaustive or prescriptive list of considerations. Rather, they may be a helpful checklist of factors to weigh in the balance when determining what is in the welfare interests of the child concerned.
14. In relation to orders under section 91(14) of the Children Act 1989, as noted earlier, this is also subject to the considerations set out in PD12Q. Section 91A allows a Court a wider discretion to make such orders than was historically the case, specifying that a Court may make an order where, in addition to other circumstances, the Court is satisfied that the making of an application for an order under this Act of a specified kind by any person who is to be named in the order would put the child concerned or another relevant individual at risk of harm (section 91A (2)). Such orders can be made either on application or of the Court's own motion (section 91A (5)). Whether made on application or of the Court's own motion, PD12Q is clear that notice should be given to enable the parties to make representations about such a possible order.
Analysis
15. A's wishes and feelings in light of his age and understanding is the first relevant welfare checklist heading. A is 12 years old, turning 13 in August this year. The evidence of the ISW was very clear that A is a very immature 12-year-old. M does not accept that this is the case, though her evidence about this was slightly confused and seemed to me to be referring to his intellectual and emotional maturity rather than all aspects of his maturity. F did not dispute the ISW's assessment of A's maturity. One advantage of such a lengthy ISW report is that I have significant detail of her interactions with A, as well as with A's parents, her running analysis of those interactions, in addition to her conclusions and recommendations at the end of the report. She was clear in her oral evidence about the immaturity of A in her professional opinion. I also have the evidence from school A, including the most recent summary reports produced by M on 17th March. The ISW had also seen the school reports and referred to those in her oral evidence, noting that they demonstrated A's immaturity as well. Having considered all of the evidence, I agree with the ISW that A is immature for his age. He is clearly easily led by others at school, is not taking responsibility for things in a way that one would expect at his age (for example organising his homework as noted by the school or relying on his parent to prompt him to contact the other parent indirectly).
16. I am also mindful of the fact that, as the evidence from the ISW shows, A has been exposed to ongoing disputes between his parents about arrangements for him for a number of years at this point. This has, in the opinion of the ISW, caused A emotional harm. I found her written and oral evidence about this compelling. She concluded that A would benefit from some appropriate therapeutic input as a result, and it seems both parents accept this conclusion in their evidence to me. The fact that A requires therapeutic input is an indication of the significant impact of the parental conflict on him, I find. In addition, it is clear from the ISW's evidence that A worries about M, perhaps more than he does about F. As the ISW evidence showed, this seems to relate to the different practical circumstances that each parent is experiencing, as well as the differing parental styles that each adopts. M has a less structured and organised approach to parenting than F, F has more immediate family support both practically and emotionally available to him, whereas M has moved to be close to her family but her mother has dementia and is now in a residential care home so that brings with it additional emotional and practical pressures on her and the maternal family that will inevitably reduce their emotional and practical availability for anything else. As the ISW said, this does not mean that one is better than the other, it is just the difference that A has to navigate between two parents who are, to use her words, "poles apart" in their parenting styles.
17. The ISW was clear that A has said conflicting things about what he does want in terms of where he should live. He first told her that he wanted to live with F. When she saw him with M, he said that he wanted to live with M. He also said that he wants to live with each parent equally. Clearly, as both parents accept, that is not possible because M moved to live in the new area in August last year. M was adamant that A has consistently said that he wanted to live with her. However, the evidence of the ISW and the school suggests that A is deeply conflicted between his two parents, arising from their chronic conflict with each other and his exposure to that. It would not be surprising if A was therefore saying different things to different people, including his parents, at different times. Curiously M simply refused to accept that this was a possibility, despite the evidence of the ISW. It seemed from her evidence to me that she believes that A has told F the same as her, and that she has been told by A that this is what he has told F. I will return to my concerns about how M has managed discussions with him about this and the move when I consider parenting capability and risk of harm, but would note that it is not helpful to A for M to refuse to acknowledge that A may indeed be conflicted about what he wants but may also simply tell her what he thinks she needs to hear. The evidence before me is clear that A's wishes and feelings are not clear cut, and I am satisfied that he is simply conflicted about what he wants, has expressed different views to different people at different times and probably should not have the burden of having to decide placed on him given his comparative immaturity.
18. A clearly told the ISW that he had been told what to say by F (D38). M relies upon this as evidence of her concerns about F's ability to put A's interests first, I think. It is significant, in my view, that A only told the ISW that F told him what to say when he was with M and was telling the ISW that he wanted a different outcome. The ISW was not concerned about either the discrepancy in A's views between the two interviews, or the allegation that F was telling him what to say because, as she explained in her oral evidence to me, in her professional assessment A is a child whose own views are conflicted rather than clear cut and at his age he was likely to be echoing what each parent says rather than being told what to say by each. I accept her evidence about this and would note that this is why it is important for A's wellbeing that each parent is careful about what they say around him and that they do not inadvertently seek to place responsibility on A to choose between them given his conflicted state of mind.
19. A's physical, emotional and educational needs is the next welfare checklist heading. Aside from the emotional impact on him of his parents' conflict and the consequential need for therapeutic input to address this, he has no additional needs beyond those which would be usual for a child of his age. He has a need for his parents to do more to protect him from their conflict, given the evidence of the emotional harm that this has caused him, and he has an emotional and identity need to have meaningful relationships with both of his parents and his extended paternal and maternal family. Neither parent disputes this, to be fair.
20. The likely effect on A of any change in circumstances is the next welfare checklist heading. To some extent, whatever I decide is in A's interests in this case, he has already suffered a significant impact as a result of M moving to her new location in August last year. That change included his moving to live most of the time with F and to spend weekends and holidays with M instead of living with her most of the time. It was part of M's original application and case before me that she had been A's primary carer until she moved. Ms Shillingford challenged her about the use of this term in light of the fact that the 2019 order and even the agreed variation of it were about shared care. M explained that she thought the term simply meant that A spent most of the time with her. However, this is in the context of her also saying in her application that the maternal grandmother was dying and that is why she had to move. Her evidence about this was not particularly credible or compelling, since she explained that the maternal grandmother was not at risk of dying imminently but her lifespan may be reduced by her dementia and she is dying in the way that we are all dying. M is a bright, articulate and educated woman so it seems inconceivable to me that she would not have realised that someone reading that the maternal grandmother was dying would interpret that in the conventional sense of having reached immediate end of life. Similarly, when she sought to portray herself as A's primary carer, I am satisfied that this was in an attempt to bolster her application and, more worryingly, implying less involvement by F in A's life. In any event, F fairly accepted that until M moved A had spent more time with M and that M had handled most of the day to day tasks for A as a result, but that is not the same as saying that F was not significantly regularly involved in A's life by virtue of A living jointly with him.
21. M also told me that she thought it was important that A could spend as much time with his maternal grandmother as possible while she is around. Whilst I do not detract from the seriousness of the maternal grandmother's dementia, nor from the obvious emotional benefit to A to spending time with her when possible, this is not an overriding factor in weighing what is in A's best interests. Sadly, from the description of the maternal grandmother's decline that M gave in the course of her evidence to me, it also seems that she may be approaching a point where there will also be significant periods of time when it would not be appropriate for a child to spend prolonged periods with her in any event, for example when she needs urgent personal care or is distressed and unable to recognise those around her. I am not saying that a child should never experience a family member struggling with the adverse effects of dementia, simply that for both the maternal grandmother and A there will be periods when it wouldn't be appropriate for A to be there. I found that M sought to portray (perhaps understandably) a rather roseate view of spending time with the maternal grandmother, though even on her own evidence there may be periods of 'sun downing' when the maternal grandmother's cognitive function may sharply deteriorate and she may exhibit some distressed and distressing behaviours. In any event, as I have noted, despite the inevitable decline associated with her dementia and M's initial assertion on her application that the maternal grandmother was 'dying', the maternal grandmother has not reached end of life so there will be time for A to spend with her when A is with M regardless of the outcome of this application.
22. Whether I grant or refuse M's application to relocate A is therefore going to represent a significant change to A's circumstances because if granted it would also mean that A would move to a new area (albeit one that he knows from holidays, where the maternal family are based and from the time he has spent with M since she moved). It would entail a change to a new school, mean that he would have to make new friends at school and in the local area, and would mean a change from private to state schooling with all the differences in approach and curriculum that inevitably entails. The quality of the education he may receive if he attends school B would also be less than he currently receives purely because of the lower Ofsted rating and lower resource level that even a good state school would be able to offer. Though this is not to say that school B would not be good enough for A's educational and social needs as the ISW accepted in her evidence to me. I did take note of the ISW's professional opinion that the current school is working for A and she thought it should not be changed as a result, though this is not determinative of the overall issue about relocation in this case. Whilst school B may be capable of meeting A's needs, it is not unreasonable to suppose that moving to a new school would also bring a period of adjustment and some challenges for A and would not prevent some of the same issues that arose last year in relation to A and school A from reoccurring. More significant, in my assessment of the evidence in this case, is that even with those issues at school A last year A is doing exceptionally well based on the school reports and his attendance there and the historic issues have clearly been addressed. To risk those issues reoccurring in a new school would be to risk further emotional harm to A as well as potentially undermining his academic progress, I find. Most significantly, in my view, is the impact on A's relationship with F and the quality time that he could spend with F. He could only spend weekend time with F during term time, as both parents accept, and the impact of such a long journey whether by car or train between each parent's houses on top of the school week is also a concern as the ISW evidence shows. To some extent, the reduction in time with F during term-time could potentially be mitigated by increased holiday time, as M's final proposal seems to acknowledge. The ISW told me that, in line with her report, she would recommend an equal split of holiday time but I would depart from her evidence in this regard because I am not convinced that would afford A the sort of quality time with the parent that he is not living with that he clearly needs.
23. The next relevant welfare checklist heading is any harm which A has suffered or is at risk of suffering. As I have noted, the ISW evidence, which also draws upon the information she obtained from the school (see for example D33-34), concludes that A would benefit from appropriate therapeutic input to address the emotional harm that he has suffered by exposure to his parents' conflict. Given the evidence of the ISW, I conclude that A has suffered emotional harm arising from exposure to his parents' conflict and would be at risk of further emotional harm if that exposure does not cease. This is relevant to the question of whether a section 91(14) order should be made in this case, something that the ISW supported in her oral evidence to me and which each parent accepts is necessary to protect A from further proceedings until he has completed his GCSE's in summer 2028.
24. The capability of A's parents to meet their needs is the next relevant heading. In the professional opinion of the ISW, each parent is capable of meeting A's needs. Both parents have alleged that the other parent is not capable of this, though. M alleged that F is not capable of meeting A's emotional needs, and that he poses a risk of physical harm to A through use of physical force in attempting to manage A and parent him. F alleged that M is not capable of meeting A's need for stability. The standard of parenting ability that a Court has to consider is simply whether the parenting provided is 'good enough' for A. M allegations about F are submitted in support of her application for relocation, but she does not rely on them to seek to restrict the time that A spends with F and, by moving to her new location in August last year with A living most of the time with F, has demonstrated that she actually has no real concerns about F's day to day parenting of A, I find. F did accept when he spoke to the ISW and as a result of the MASH investigation that he should not use physical force to require A to do things. As the ISW pointed out in her evidence to me, aside from the general inappropriateness of physical force being applied to a child, A is approaching an age and size when this is simply not going to work. The ISW also told me that each parent is capable of providing the emotional support that A needs, though they will do that in different ways because of their very different parenting styles. I do not find M's allegations about F in this respect proved, and I am satisfied that each parent is capable of meeting A's emotional needs albeit they may do that in a different way. The ISW's evidence was also clear that, despite these differing parenting styles, A has adapted to navigating the differences so, somewhat unusually, that difference is not something that is harmful or potentially harmful to A as long as each parent avoids exposure to any conflict between each of them about their differing parenting styles.
25. In terms of F's allegation that M is not capable of meeting A's educational needs, this is again something that the ISW gave evidence about. She noted that the schools proposed by M if A were to move to live with her were all capable of meeting A's educational needs, and school B, M's preferred school, would have the advantage that A could walk to school and thus increase his personal responsibility for this. School A requires him to be either driven in by F or, as F told me in his evidence to me, A could walk to a bus near F's house and then go by bus to school A. School A is an independent school, school B is a state school but it is a relatively small school. Each school has a range of extra-curricular activities available. The Ofsted rating is different, though, with school A having the better Ofsted rating. M's evidence about school B and her other options if A were to move to live with her is at C6-C7. Both parties submitted voluminous school brochures, which I directed should be removed from the bundle because they did not add anything to the knowledge I already had about each school, but these brochures also did not provide any specific information about how each school might fit with A's needs. In her statement M did not address practicalities of each proposed option, and it was actually left to Ms Shillingford in cross examination of M and in her submissions to set out the comparative distances and travel times involved. It seems as if A had an opportunity to visit school D, though this seems even on M's evidence to have been without F's prior knowledge and in an unplanned manner. Given the history of conflict, this was not wise of M, I find, and gives me concern about her ability to protect A from that conflict because she must have known that F would be perturbed by A being shown round a proposed new school without his knowledge. If F were to have done the same, even if it arose in an unplanned way as she described, I am sure that M would have complained bitterly about F making unilateral decisions without her because she has consistently accused him of that in these proceedings. Curiously, I do not have any evidence to confirm that there would actually be a place available for A at any of the schools M has put forward, let alone school B, nor any evidence about the timing and process for a place to be sought for him there.
26. M alleges that school A is not currently meeting A's educational needs. Essentially this relates to allegations that A is or has been bullied at school A, and that he has no or very few friends there and does not want to go to school A. It is not in dispute that, as set out in E1-E9 of the bundle in a letter from the school also enclosing a MASH chronology, there was an issue of bullying or name calling (both the school, M and F seem to have used the terms in slightly different ways) that the school first became aware of in June last year. It is also not in dispute that A committed an act of vandalism at school, which the school investigated and determined was as a result of A making poor choices, a theme which also emerges from A's school reports at times including the ones produced by M on 17th March 2025. The MASH referral was initiated by the school when A told his mentor that he did not feel safe with F, but on reading the detail at E1-E2 and E8-E9 it seems this was actually something that A said in connection with F's parenting of A by removing A's devices when he misbehaved. It is clear from both the MASH referral and the school information that A has experienced parental acrimony, and that M moving to her new location left A with F and this created difficulties for A. F also told me in his evidence that it was a difficult time, with A moving suddenly to his care most of the time. I am sure that, whatever A may have said to M about his understanding of why she felt she had to move when she did, there is a significant element of A feeling abandoned by his mother and that F and the school bore the brunt of the emotional fall-out as a result. Again, this was something the evidence of the ISW noted, and she confirmed to me that she was not concerned about F's parenting of A in this regard nor the ability of school A to deal with the issues they had identified. The evidence from school A is also significant in that it confirms A has had a 100% attendance record since September last year, something that supports a conclusion that A is not as unhappy with school A as M sought to portray. M also alleged that A only has one friend at school A, but the evidence from the school (including the up to date reports she submitted on 17th March) shows that the school has no concerns about A in this regard, noting that he does have one particular friend but that he also has wider friendships (E1). The school has put in place support for A in relation to the bullying as well (E1 and E2). If A was as unhappy as M alleged, I would not have expected the extremely positive recent reports from 10th March 2025. M told me in her evidence to me that she did not think the reports were accurate. I found her to lack credibility about this. She produced these reports to support her case, but was then trying to argue that they were missing key details. Her evidence and, indeed, her case about school A and whether or not A is doing well there and his needs are being met there, was confused and in stark contradiction to the third party evidence, including that of the ISW. I find that school A is meeting A's needs for education and socialisation, as the ISW told me. The ISW also pointed out in her oral evidence to me that A is a child who experienced not just his M moving away last summer, but lockdown in 2020. This, in her professional opinion, has contributed to A's lack of social skills and I found her evidence particularly compelling about this and supported by what the school reports demonstrate. Overall, A is noted by the school to be "a gentle pupil who has, on occasions, been on the receiving end of unkindness. He is not one to hurt another person's feelings" (E1) and his school reports (both at B57-61 and as produced by M on 17th March) show that he is a delightful child who gets on well with his peers but just needs to learn to apply himself more, take more time over specific pieces of work and challenge himself at times. None of this supports a conclusion that he is as unhappy at school A as M tried to establish, I am afraid.
27. M also sought to establish that school A had been imposed upon her, I think in support of her allegation that F has been controlling of her actions. Her written evidence does not address this at all, but she told me that she was offered a limited choice of schools from which she chose school A. She did not explain any of the background to that limited choice, nor why she did not propose alternatives or apply to court as a last resort if she was not happy with what was being offered. She accepted that she had chosen school A and I cannot see any credible evidence anywhere else before me to show that she objected to school A at any point prior to deciding to move.
28. I noted earlier that F was rightly concerned about M permitting A to visit school D without F's consent, and that I was also concerned about M's discussions with A about a move to the new area. M's evidence to me in this hearing, and F's exhibit of an email from M in the supplemental bundle (B66), show that she discussed the possibility of moving with A before she informed F of this possibility. The tone of her communications to F exhibited in the bundle, the email at B66 in particular but also the communications in 2022 about a possible move then, are also striking bearing in mind her allegation that F was controlling of her. The communications show her presenting F with a range of options in 2022, but at the same time demanding that he provide additional funding if she were to remain in this area, and presenting F with a fait accompli that she would be moving in June 2024 and had decided that A would be better off if he moved with her. I actually find that M is the one who has sought to be controlling of F and A in terms of how she handled these communications. She has also provided very little detail in any of her actual evidence submitted to this Court about what she was proposing about time that A would spend with F if A were to move to live with her. The exhibits that set out her proposals in 2022 and in 2024 (the former of which she said were simply her 'exploring' possible proposals though that is not how they read to me) are only before the Court because F produced them. M's evidence in her statement contains absolutely no specific detail about what she proposed for the time that A would spend with F, not under the section that is headed "G) Ensuring A's meaningful and regular contact with Father and Paternal Family" (C9) and on C12 under "Orders Sought" M said "I propose structured, quality time with his F as has always been in place, shared holiday arrangements, regular video and phone calls, as well as continuing the supported arrangements for online gaming sessions with his paternal cousin, uncle, and friends to maintain chosen valued connections". When asked by Ms Shillingford about this lack of specific detail until Mr Nwokedi filed his position statement on her behalf on Friday afternoon, M said that she had been of the understanding that it was something she was only to put in her final position statement and that she had been a litigant in person in the early stages of these proceedings. Leaving aside the established law that a litigant in person is still expected to familiarise themselves with the relevant law and procedure, she was not at all credible in her evidence to me about this. She was legally represented by the time of the hearing on 15th October and her statement was to be filed after that hearing. Taking her various communications and proposals outlined to F in correspondence in both 2022 and 2024 into account, I am forced to conclude that M's approach to formulating proposals for the time that A would spend with F if A moved to live with her in a new location is to think about it in detail almost as an afterthought. This is relevant when I consider the guidance of Payne v Payne considerations because I am satisfied that M simply did not think in advance about how A's relationship with F would be properly maintained if he were to move to live with her and in particular her plans lack any specific detail until the very last minute. As Ms Shillingford submitted, it is also relevant that until this final hearing M was proposing some form of flexible schooling arrangement to enable A to travel to spend time with F on alternate weekends from a Friday to a Monday. There was no evidence from M of how precisely this would work, including what home schooling provision was envisaged as part of this nor from any of her proposed schools to confirm that this would be acceptable for A if he were a pupil with them. When the ISW was asked about this by Ms Shillingford, she was adamant that flexible schooling was not suitable for A or any child who needs the sort of stability and socialisation that A needs. To be fair to M, as I have noted she did not pursue this suggestion at this final hearing, but it is concerning evidence of M's lack of careful planning both in relation to arrangements for A spending time with F and in relation to schooling, I find. It is also concerning evidence that M's proposals have not put A's needs first. Rather, it seems clear to me that A decided to move first and has then been struggling to 'retrofit' arrangements for A to the move after the event. M's written evidence contained no proposals in the event that A did not move to live with her. F's assertion in his evidence at C21 that M's application did not have A as her primary focus with A having to fit around her commitments in the new location is therefore well founded, I find. In contrast, F has set out in his statement at C30 and C34 his concerns about the impact on A of travelling long journeys between M and F's respective locations, something that the ISW also noted as a concern in her report as a result of the school information to her (D34). He also set out clearly at C40-41 his proposals for the time that A would spend with each parent if he were to remain living with F and going to school in this area.
29. The Payne v Payne checklist is, as I have noted, often of assistance in these sorts of cases and the detail of M's proposals, or lack of such detail, is of relevance in considering how well thought out her plans are (to borrow from Ms Shillingford's phraseology in her opening note). The other relevant Payne v Payne consideration that I have not covered specifically under the welfare checklist headings above is the motivation of M in seeking to relocate and F's motivation in opposing the move. Nobody disputes that M's move seems to have been largely prompted by the maternal grandmother's dementia and care needs. It is accepted by F that this is a very difficult and tragic situation for all concerned and I accept that too. M's evidence about what precisely is required of her in connection with caring for the maternal grandmother has altered considerably. She initially sought to establish that she had to provide care for the maternal grandmother at home, and it is not disputed that she has been assessed as a carer for the purposes of claiming Universal Credit. She told the ISW that she cared for the maternal grandmother as part of a team and that meant she was responsible for two days during the week to help her mother (D14). Her statement at C2 did not provide this sort of detail but did confirm that the maternal grandmother's dementia had advanced significantly over recent months. As she accepted in her evidence to me when questioned by Ms Shillingford, in January this year sadly the maternal grandmother moved into a non-specialist care home by way of 'respite care', though it seems that M may be overly optimistic about whether the maternal grandmother may ever be able to return to be cared for at her home in light of the letter from the Local Authority at B5 and M's own evidence to me about how far her mother has declined in terms of physical care needs. I am satisfied that M's desire to relocate and subsequent relocation in August last year was largely motivated by the decline in the maternal grandmother's health, and also that she is significantly involved in helping to care for her. I have concluded that it would not have been possible for her to provide the 35 hours of care that she must as a registered carer while the maternal grandmother was living at home and to continue to care for A for the majority of the time whilst living in this area. I am less clear that she is still providing quite as much care for the maternal grandmother as she was now that the maternal grandmother is in a care home, though I do accept that she and other family members may well be augmenting the support and care that the care home is providing, especially since it is not a specialist dementia care home. As M fairly accepted in her evidence to me, it may be that a move to a specialist care home does happen, but it is not clear when that might be on the evidence before me but I know from my own experience in Court of Protection cases that it could happen at any point if the current care home is no longer able to meet her needs.
30. It is equally clear from the evidence that M herself has given in this case, as she confirmed in her evidence to me, that she has long wanted to return to the area that she grew up in and that she intends to stay there. Her motivation for the move seems to be largely driven by the needs of the maternal grandmother, augmented by her overall desire to return to an area she grew up in and still has maternal family in, rather than a deliberate desire to disrupt A's relationship with F, I find. F's motivation in opposing the move is equally one that I find is not to exert control over M but, based on the evidence before me, is because he genuinely thinks that A remaining here is in A's best interests and is deeply concerned about the impact of A spending less time with him if he were to move.
31. The concern that I have noted already is about what I have found to be a lack of planning and research put into the relocation proposal by M, and the impact on F as the proposed remaining parent and lack of clear proposals for promoting that relationship from M until the very last minute. Essentially, I am satisfied that M did not put much thought into the proposals for A spending time with F and the impact on both F and A of A potentially spending much less time with F.
32. The range of powers available to the Court under the Act in the proceedings in question is the final relevant welfare checklist heading in this case. Unusually, I am going to start by considering a section 91(14) order in this case, largely because both parties now accept that whatever the outcome further proceedings would not be in A's best interests until he has completed his GCSEs and that, as section 91A sets out, any application to vary arrangements for him or to determine specific issues about his schooling would expose him to a risk of harm. Considering this and the evidence of the ISW about this, I am satisfied that an order under section 91(14) is required in this case, to last until 31st July 2028, and prohibiting any application by either parent to vary arrangements for A or for a specific issues order to determine where A should go to school without leave of the Court. Any such application for leave to apply during the currency of the order is to be served upon the other party and the Court will give consideration to the appointment of a rule 16.4 Guardian from either CAFCASS or NYAS if leave to apply is granted, in accordance with the evidence of the ISW and my consideration of the requirements of when such an appointment may be required by reference to PD16A. Any application for permission to apply during the currency of the section 91(14) order would need at a minimum to be accompanied by evidence that A has completed the sort of therapeutic input recommended by the ISW in this case, and with clear evidence of proper proposals for schooling and time to be spent with the other parent, including evidence of actual school availability and how any impact on GCSE preparation would be mitigated if the application were to be granted.
33. In terms of M's application for permission to move A to her new location, that application is refused as not in A's welfare interests given my findings above. Her application to change schools is also refused since A would remain in this area and I have found that school A is meeting A's educational and social needs.
34. The Child Arrangements Order made in 2019 is varied as follows:
a. A will live with F during term time.
b. During term time A spend time with M on alternate weekends, one in four in this area to minimise the impact of travel on A as noted earlier (and it will be a matter for M as to whether she sources her own accommodation for these purposes or takes up the offer of accommodation provided by F as he has proposed) and one in four with M in the new area with A travelling from after school on Friday and returning on Sunday afternoon. F shall be responsible as now for transporting A to and from Reading station since that shortens the overall journey by train for A, but M will be responsible for escorting A during the remainder of the journeys since she was so clear in her evidence that this would give A additional, quality time, with her.
c. Holidays shall be shared but it will not be an equal share of all holidays since this will mitigate the impact on A of spending less time with M than was the case prior to August last year. In this respect I find that a division that is half of the Easter, Christmas and summer holidays is in A's welfare interests since that is practicable and allows him to spend leisure time with both of his parents. However, for the half term holidays two of the three half term holidays shall be spent entirely with M in her new location as a means of mitigating the loss of time with her as noted. This shall start with the summer half term this year, with the autumn half term being shared equally, then the whole of the early spring half term in 2026 being with M in her new location. This pattern shall continue for subsequent years unless the parties agree otherwise.
d. A specific issues order in relation to medical treatment is no longer required given the agreement between the parties but there will be a recital on the court order to capture what has been agreed.
e. Similarly, a recital will capture the need for the parties to source and agree appropriate therapeutic input for A, with the assistance of the ISW as she offered in her evidence to me.
f. Both agreed with the suggestion from the ISW that A should be taking more responsibility for contacting the parent he is not with by phone or text, and with my suggestion that A could be provided with a non-smart phone (one only capable of basic calls and texts) to address issues with access to the internet and gaming when he shouldn't be. They also agreed to some broad parameters around this indirect contact so that it should not take place after A's bedtime, especially on a school night, and should usually be for brief calls of around 10 minutes. A recital to capture this should also be on the order.
g. Finally, there shall be a recital to also capture the agreement of both M and F not to use A's image in connection with their business or any commercial enterprise without the prior consent of the other party.
Conclusions
This was, as the ISW told me, a finely balanced case. I also noted that, regardless of the outcome, A has had a significant change of circumstances arising from M moving in August last year. It was submitted by Mr Nwokedi in closing that M deserves credit for not unilaterally moving A at that point, I would accept that leaving A with his F here was a child-focused decision in that respect even if I have found that were concerns about how child-focused her decision to move and her planning for A subsequently was. Ultimately, each parent made various allegations about the other in this case, ultimately it was not necessary for me to consider many of those given my other findings including that neither was seeking to rely on those allegations to prevent A spending significant time with the other parent. I was struck by the negativity of the paternal family in speaking of A to the ISW, but satisfied that F is capable of protecting A from this. Equally, M's negativity about F was also striking, and perhaps more concerning given that I am not sure she is aware of how palpable this negativity can be at times and her refusal to accept that A could be as conflicted as I have found him to be. I would urge F to ensure that he does ensure that A is protected from the negativity about M that the paternal grandmother displayed to the ISW, and would urge M to ensure that she does not (even unintentionally) expose A to any negativity she may feel about F. Ultimately, the evidence is very clear that not only does A love each of his parents deeply and unconditionally, it is also very clear that each of M and F love A deeply and unconditionally too. A benefits greatly from that depth of love and will continue to do so in my assessment.
HHJ Owens
3rd April 2025