News, Events & Resources

Family Law Newsletter – September 2025

newsletter

25/09/2025

Welcome

Family Law Newsletter – September 2025; Articles, news, legislation updates and case updates from Care Proceedings, Private Law and Financial Remedy matters.

Edited by Niamh Brennan and Sarah Hutchinson; news and Case Updates by 2025 Pupil Caitlin Smithey

Contributors

In The News

MP report leads to Government action plan in relation to family court delays

Sentencing Bill 2025 introduces reform to assist in identifying domestic abuse perpetrators

45% of parents share children’s details online resulting in their children being at risk of cyber crime

Local Authority failed to take ‘satisfactory notes’ of children’s views within safeguarding investigation states Ombudsman

Case Updates

Re K (International Relocation)

In the Family Court before Recorder O’Grady

Factual background

This case concerned an initial application brough by the father for a child arrangements order in respect of K, aged 3, and a subsequent application by the mother for permission to relocate the child from Nottingham where both mother and father live, to the North West of England.

In May 2023, the parents separated. Post separation until December 2023, K would spend every Friday to Monday with the father. This arrangement ceased, and the father brought proceedings in January 2024. From 30 April 2024, in accordance with a consent order, K was spending alternate weekends in the father’s care from Friday to Sunday.

The mother had been married to her husband for a year and have a child together. The mother submitted that she felt isolated and stuck in Nottingham. She has no relationship with her father or her own siblings, who live in Nottingham. Her mother has recently left Nottingham and relocated to a town in Yorkshire. The mother wanted to be in the North West area because that is where her husband’s family are. She says they will support her, but other than saying they would be an emotional support she failed to say how she and K would be supported by them. The mother confirmed that she had looked at housing in the North West area and she could obtain a more comfortable home for less money than she can in Nottingham and provided some property particulars.

The parents were agreed on the arrangements for the distribution of who K would spend time with during school holidays. The issues for the court were therefore:

Whether it was in K’s best interests to relocate from Nottingham to the North West
How K’s time would be divided between his parents outside of holidays
What type of child arrangements order was in K’s best interests

Whilst the Court was assisted by a letter from the Family Court Adviser, addendum report, safeguarding letter and section 7 report, which all resulted in the family court advisor (“FCA”) concluding ‘that the relocation should be supported’, the FCA’s analysis was criticised by the court on a number of grounds. The court considered that:

The analysis was linear as whilst the advantages and disadvantages of relocation had been considered, the FCA had failed to evaluate the advantages and disadvantages of remaining in Nottingham and their impact upon K’s welfare.
Furthermore, the FCA had failed to assess what remaining in Nottingham would mean for K’s life, ‘particularly his relationship with his father’ or make recommendations relating to K remaining in Nottingham.
‘The FCA accepted the mother’s narrative at face-value’ rather than adequately challenging her contentions.
‘The FCA did not explore with the Mother her options for remaining in the Nottingham area to ascertain if there are realistic options that do not require relocation.’
Finally, the FCA’s understanding and knowledge of the history of the case was considered ‘inadequate’ on the basis she was not aware that the mother had from December 2023, prevented the father from seeing K, despite this being agreed between parties.

the mother’s case

The presentation of the mother’s case was labelled ‘very problematic’.

Her witness statement was criticised for failing to address many of the bases for the move upon which she relied. Furthermore her Husband’s evidence also failed to do this and there was no corroborative evidence from the Husband’s family regarding any support they could provide to the Mother and the relationship they have with her, the Husband and K.

Additionally, it was conceded by mother’s counsel that there was ‘’no practicable reason why the mother cannot reside in Nottingham.’

Ultimately, the Judge considered the mother’s thinking to be ‘idealistic rather than realistic’ as she viewed the move to be almost a one-size-fits-all solution to her problems, without any thorough consideration on how she would respond should the application be refused.

The Judge also found that the mother’s plans to relocate were recently founded given they had not been mentioned throughout the entire section 7 report process.

The Father’s Case

The father accepted that in Nottingham, the mother had a limited support network and thus agreed in ‘very broad terms’, that ‘the Husband having family in the North West’ offered ‘benefits’.

The father did propose that should the Court permit the mother and K to relocate, that he should see K ‘on a 7 day alternating pattern’ which the court found to be unrealistic. On this basis, the court concluded he lacked ‘satisfactory insight’ into the developmental needs of K.

The Judge further concluded that the father’s opposition to the mother’s relocation originated not from a desire to control, but instead a wish to act in K’s best interests.

Legal Principles

The Court considered the caution given by Lady Hale in W Children [2010] UKSC 12 at [29] regarding private law proceedings fact-findings:

“…there are specific risks to which the court must be alive. Allegations of abuse are not being made by a neutral and expert Local Authority which has nothing to gain by making them, but by a parent who is seeking to gain an advantage in the battle against the other parent. This does not mean that they are false, but it does increase the risk of misinterpretation, exaggeration or downright fabrication”

Furthermore, the Court had regard to the best interests considerations laid out within section 1(3) of the Children Act 1989 including:

Unless the contrary is shown, the presumption is that the involvement of each parent being in a child’s life will further the child’s welfare.
When making a section 8 order, the Court must not do so unless it considers it to be more beneficial to K’s best interests than no order being made ‘or no less draconian order’.

Since Re C (Internal Relocation) [2017] 1 FLR 103), it has been clear that the Court should take the same approach for internal relocation as it would for external relocation.

The case of Payne v Payne [2001] 1 FLR 1052 sets out a ‘checklist of the sort of factors which will or may need to be weighed in the balance when determining which decision would better serve the welfare of the child.’ Thorpe LJ at [85]:

“(a) The welfare of the child is always paramount.

(b) There is no presumption created by section 13(1)(b) in favour of the applicant parent.

(c) The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight.

(d) Consequently the proposals have to be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.

(e) The effect upon the applicant parent and the new family of the child of a refusal of leave is very important.

(f) The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.

(g) The opportunity for continuing contact between the child and the parent left behind may be very significant.”

It was however made clear in Re F (A child) (International Relocation Case) [2015] EWCA Civ 882 that the Payne checklist are not rigid as they ‘may or may not be relevant on the facts of an individual case’.

findings

There was no dispute regarding the mother’s ability to care for K. It was considered that her decision to unilaterally stop K’s time with the father in December 2023 arose from an ‘overly anxious disposition’ as opposed to ‘an intention to deny K a relationship with the Father’.

The mother was unable to persuade the Judge that there were economic advantages created by a move to the North West for her and her Husband.

Furthermore, whilst it was accepted that the mother would feel more comfortable in the North West, it was not proven that the network of people the mother would have around her in the North West would be able to offer her.

Finally, whilst the mother would be able to find suitable housing in the North West, this was considered to be no ‘marked difference in quality’.

Therefore, the court considered that whilst there were benefits to the mother relocating which would help her to feel less isolated, the plan was not well considered and was ‘idealistic’.

The court considered that the disadvantages to K, should the mother relocate, would include, having a ‘limited direct relationship with the Father outside of Holiday periods’, and that the fortnightly car journeys would be onerous for K which would likely ‘impinge on K’s school week’. Furthermore, the father would be ‘unable to have any meaningful engagement with K’s school or his educational development’.

The court concluded that ‘The Mother has not offered any evidence which suggests remaining would impact or compromise her mental health such that she would not provide appropriate care for K’.

The Judge ultimately concluded that the application to relocate should be denied on the basis that ‘what K stands to lose by relocating is far greater than what he stands to gain. He will lose the opportunity to have deep connections with both parents, who would each be able to be a significant part of his life’.

An equal division of time was denied on the basis that it would be challenging for K to be away from his primary carer for such extended periods and would impact his ability to develop a relationship with his sibling on his mother’s side.

An order for K to spend time on alternate weekends and one weeknight a fortnight with the father was ultimately granted.

JUDGMENT

Re Jake (A Child)

In the High Court before Recorder Jack

Factual Background

This case concerned an application by a Local Authority for a DOLS order to be continued in respect of Jake, aged 16.

The Deprivation of Liberty sought included:

Jake will subject to a 1:1 ratio at all times both within and outside his placement;
Jake’s bedroom is monitored by alarms which will alert staff if Jake has left his bedroom at night and to ensure that he does not enter another young person’s room;
There are window restrictors on the windows of the home

The factual background to the application was as follows. On 4^th July 2023, Jake was sentenced to two and a half years custody following a conviction for three serious sexual offences against a 14 year old girl. Jake contended that the sexual relations were consensual however this was not accepted by the Youth Court.

It was noted in the pre-sentence report that Jake himself had been a victim of sexual assault when he was aged 6 at his foster placement.

There were thirteen conditions of the licence under which Jake was released which, of particular significance, included:

“(x) Confine yourself to an address approved by your supervising officer between the hours of 21:00 and 07:00 daily unless otherwise authorised by your supervising officer.

(xi) To comply with any requirements specified by your supervising officer for the purpose of ensuring that you address your sexual offending;

(xii) To comply with any requirements specified by your supervising officer to register and engage with an education provider;

(xiii) To comply with any requirements specified by your supervising officer to register and engage with housing/your support networks.

The Local Authority’s case for a DOLs order to be made was based on the following:

‘Jake scored in the red category for sexual behaviours, developmental influences, and self-regulation, indicating a need for urgent intervention. He scored amber in the remaining domains. These results suggest that Jake requires comprehensive support across all five domains to address both the trauma he has experienced and the risk of continued harmful behaviour.
‘Jake has been assessed as posing a high risk of re-offending, serious harm to others, and risk to his own safety and wellbeing.’
The Local Authority noted that whilst ‘notable progress’ had been made by Jake in the detention centre, ‘this progress had occurred within a highly structured and controlled environment’, an no therapeutic work had yet taken place in order to address his offending behaviour.

The Local Authority submitted that whilst a DOLs order is a draconian measure, ‘Jake’s care regime could become unmanageable without the DOLs authorisation’, and a step down plan was needed.

the Guardian’s position

The Guardian’s position was that a DOLS order was not appropriate and was acting as an ‘inappropriately used’ ‘extra added layer of incarceration’.

The benefit that was posed to Jake through the DOLs is the fact that it gave him access to therapeutic interventions, however the Guardian’s position was that this could have been delivered by the Youth Offending Service as part of Jake’s licence in any event.

The Guardian showed ‘grave concern’ regarding the use of the inherent jurisdiction to authority a deprivation of liberty where its deployment was being utilised to ‘fill a gap in the child care system caused by inadequate resources, with the Court being asked to ‘plug the systematic gaps’’.

legal Principles

The Court had regard to the purpose of sentencing child offenders as is laid out in Section 58 of the Sentencing Act 2020:

Nothing in this Code affects the duties of the court—

(a) to have regard to the principal aim of the youth justice system (which is to prevent offending (or re-offending) by persons aged under 18: see section 37 of the Crime and Disorder Act 1998 );

(b) under section 44 of the Children and Young Persons Act 1933 (to have regard to welfare and in certain cases to take steps in relation to surroundings and provision of education etc).”

This is supported by the Sentencing Council’s guidelines Sentencing Children and Young People:

4.1 In determining the sentence, the key elements to consider are:
- the principal aim of the youth justice system (to prevent re-offending by children and young people);
- the welfare of the child or young person;
- the age of the child or young person (chronological, developmental and emotional);
- the seriousness of the offence;
- the likelihood of further offences being committed; and
- the extent of harm likely to result from those further offences

The Court noted the test for exercising its inherent jurisdiction, as set out in section 1(1) od the Children Act 1989:

“the child’s welfare shall be the court’s paramount consideration.”

Finally, in order for the Court to exercise its inherent jurisdiction, it must act within the limitations of section 100 of the Children Act 1989:

“(3) No application for any exercise of the court’s inherent jurisdiction with

respect to children may be made by a local authority unless the authority

have obtained the leave of the court.

(4) The court may only grant leave if it is satisfied that—

(a) the result which the authority wish to achieve could not be achieved

through the making of any order of a kind to which subsection (5) applies;

and

(b) there is reasonable cause to believe that if the court’s inherent

jurisdiction is not exercised with respect to the child he is likely to suffer

significant harm.

(5) This subsection applies to any order—

(a) made otherwise than in the exercise of the court’s inherent jurisdiction;

And

(b) which the local authority is entitled to apply for (assuming, in the case of

any application which may only be made with leave, that leave is granted).”

Judgment

The Judge noted how the Local Authority’s ‘key concern’ was that ‘should Jake not engage with [the safety plan], there would be no legal mechanism or authority in which to prevent Jake from absconding or placing himself at risk.’ However, the court noted at para 23 that:

‘It is true that a DOLs order is merely permissive: it allows the local authority to do something which, in the absence of the permission given by the DOLs order, they could not do. If Jake breaches the terms of the DOLs order, he is — not even theoretically — liable to contempt of court or any other Court-imposed sanction for beach of the DOLs order. The only consequence of breach is that the local authority can use limited physical force to ensure Jake’s compliance. It is in order to avoid the need to use physical force to prevent absconding, that DOLs orders regularly include provisions for locking doors and affixing restrictors to windows.’

Whereas, for breach of licence conditions, ‘the consequences are draconian’, in that he can be reincarcerated until 29^th October 2026. Likewise with any abscondment, the consequence could potentially be imprisonment and rescission of his licence. This is therefore a much more severe consequence than having restrictors on Jake’s bedroom windows etc.

The Judge concluded that the Local Authority had failed to show reasonable cause to believe, that should no DOLs order be granted, Jake is likely to suffer significant harm, as required by section 100(4)(b) Children Act 1989. This was on the basis that the management by the Youth Offending Team is sufficient to manage Jake and the risk of significant harm for three reasons:

The submission that there is no sanction for abscondment is wrong and thus the idea that there is no alternative to a DOLs is misplaced.
The licence conditions themselves permit a ‘step down’ as desired by the Local Authority and there is no basis for asserting that ‘the YOT are not cognisant Jake’s needs in this regard’.
YOT and Youth Justice Services hold the primary responsibility for Jake and the local authority is only secondary in Jake’s rehabilitation. ‘It is not for the High Court sitting in its parens patriae jurisdiction to micro-manage what a body

such as the YOT, which operates in a specialist area of the criminal justice system for young offenders, might consider the best course for managing a particular young offender released into the community on licence’.

The application to extend the DOLs order was on this basis, refused.