A later section 7 report nevertheless assessed the disputed allegations, regarded the mother’s account as more compelling and recommended an immediate transfer of D’s residence to the mother as the “only emotionally safe option”. The Deputy District Judge adopted that recommendation and ordered D to live with the mother and change schools. The father’s first appeal was dismissed in relation to residence and schooling.

Court of Appeal decision

The Court of Appeal unanimously allowed the father’s second appeal on all five grounds. It held that the original decision was unjust because of serious procedural irregularity and that the first appellate judge had been wrong to uphold it. The residence and schooling order was set aside, and the proceedings were remitted to the Family Presiding Judge for the Western Circuit for allocation to a fresh judge and rehearing.

Principal errors identified

Incomplete welfare analysis. The section 7 report did not properly examine the effect on D of changing her primary carer, home, school and surroundings, despite this being both a central welfare-checklist factor and an express requirement of the court’s directions. The officer’s description of D as “resilient” did not cure that omission.

Unproved allegations treated as fact. The Cafcass recommendation depended substantially on accepting the mother’s disputed domestic abuse allegations. Cafcass may investigate concerns, assess risk and provide professional observations, but it cannot convert disputed allegations into findings of fact. Where allegations are contested, objective findings must be made by the court.

Defective judicial reasoning. The Deputy District Judge imported the Cafcass officer’s conclusions into his reasoning without conducting the necessary fact-finding or adequately evaluating the evidence. The judgment did not properly identify the issues, record the parties’ competing cases, analyse the wider evidence, apply the welfare checklist or explain why transfer of residence was preferable to the alternatives.

Errors not curable by clarification. The deficiencies were too fundamental to be repaired merely by asking the first-instance judge for further reasons. The first appellate judge was therefore wrong to treat the absence of a clarification request as materially undermining the appeal.

Legal and practical significance

A decision at the first hearing that no fact-finding hearing is required is not immutable. If a subsequent section 7 assessment concludes that disputed domestic abuse is materially relevant to the child’s future, Cafcass, the parties and the court must expressly reconsider whether fact-finding is necessary. The duty under Practice Direction 12J applies throughout the proceedings.

• Cafcass recommendations must be evidence-based, address the complete statutory welfare checklist and avoid resting on unproved allegations.
• “Lived experience” may be relevant evidence, but it is not a substitute for judicial findings where allegations are disputed.
• A major change in a child’s residence, primary care and education requires specific and balanced analysis of the likely consequences.
• Judicial continuity is particularly important in complex private-law children proceedings involving allegations of domestic abuse.
• Any additional delay caused by revisiting fact-finding is less serious than making a final welfare order on a factual basis that has neither been agreed nor judicially determined.

Outcome

The father’s second appeal was allowed unanimously, the child arrangements order was set aside, and the case was remitted for a fresh rehearing.