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L v F [2017] EWCA Civ 2121

Appeal (the first by which the Court of Appeal has considered a second appeal from the High Court since the introduction of the new routes of appeal in private law family cases) against a decision allowing an appeal from an order rejecting the mother's application to remove the parties' child to live in the parents' home region in Italy.

In this second appeal – the first heard by the Court of Appeal since the October 2016 changes to routes of appeal in private law cases were introduced – the Court considered the appellate decision of Mrs Justice Russell, itself an appeal from a decision of HHJ Owens.

The case concerned D, a five year old boy, whose mother sought to relocate to Italy, alternatively to remain in the UK with D in her primary care. D's father did not support the move, seeking that D remain in the UK (where the father was living) and that there continue to be the shared care arrangement that had, to that date, existed between the parents. After hearing evidence from the parents and the Cafcass officer in the case, HHJ Owens delivered a "clear and comprehensive" judgment, in which she departed from the Cafacass officer's recommendations and concluded on a fine balance that it would be in D's best interests to remain in the UK and for both parents to share his care.

The mother appealed to the High Court. Allowing the appeal, Russell J considered that: (i) the trial judge had wrongly conflated the issues of child arrangements and relocation, and had further failed to determine the latter before the former; (ii) inadequate reasons had been given for her departure from the Cafcass officer's recommendations; and (iii) the trial judge had wrongly failed to consider or make findings on the parents' cross allegations of domestic abuse. The judge further considered that 'Brexit' had, inappropriately, not been considered by the trial judge.

Allowing the father's appeal from that decision, the Court of Appeal concluded that: (i) the trial judge had been correct to approach the issues of child arrangements and relocation together, in ultimately considering which arrangements would best meet D's welfare needs; (ii) adequate and sufficient reasons for departing from the Cafcass officer's conclusions were given; and (iii) the trial judge was entitled to consider that she did not need to make findings of fact with respect to the parents' cross allegations, but to take into account the nature of the parents' relationship when reaching her welfare decisions. Further, in so far as 'Brexit' was concerned, the Court considered that this was not an issue raised before the trial judge, nor one which was sufficiently certain for the Court to found any conclusion. The appeal was allowed on all grounds and the decision of the trial judge restored.

Summary by Anita Rao, barrister, Field Court Chambers

Case No: B4/2017/2473
Neutral Citation Number: [2017] EWCA Civ 2121

2017/0021; OX16P00167
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20/12/2017
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Damian Garrido QC and Rob George (Bar Pro Bono Unit) for the Appellant
Michael Bailey (Direct Access) for the Respondent

Hearing date : 7 December 2017

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JUDGMENT: Re L (Relocation: Second Appeal)
Lord Justice Peter Jackson:

This is an appeal from a decision of Ms Justice Russell, by which she allowed an appeal from a relocation decision of Her Honour Judge Owens in the Family Court at Oxford.  It is the first occasion on which the Court of Appeal has considered a second appeal from the High Court since the introduction in October 2016 of the new routes of appeal in private law family cases.  Permission to appeal was granted by Macur LJ on 18 September 2017 on the basis of what she described as flaws in the appeal judgment that provided a compelling reason for this court to hear the case.

The task of the High Court when acting as an appellate court in family proceedings is governed by Rule 30.12 of the Family Procedure Rules 2010, which is equivalent to Rule 52.11 of the Civil Procedure Rules 1998 as it applies to the Court of Appeal.  Rule 30.12 reads:

"Hearing of appeals
30.12 — (1) Every appeal will be limited to a review of the decision of the lower court unless—

(a) an enactment or practice direction makes different provision for a particular category of appeal; or

(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.

(2)  Unless it orders otherwise, the appeal court will not receive—

(a) oral evidence; or

(b) evidence which was not before the lower court.

(3)  The appeal court will allow an appeal where the decision of the lower court was—

(a) wrong; or

(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

(4)  The appeal court may draw any inference of fact which it considers justified on the evidence.

(5)  At the hearing of the appeal a party may not rely on a matter not contained in that party's appeal notice unless the appeal court gives permission."

So, in normal circumstances an appeal is to be a review of the decision of the lower court, based on the evidence available to that court and circumscribed by the matters raised in the notice of appeal.  The appeal court will allow the appeal where the lower court's decision is wrong, or where it is unjust because of a serious procedural or other irregularity.

In the present case, my conclusion is that the decision of HHJ Owens was not wrong or unjust in any way.  Instead, the decision on appeal was regrettably both wrong and unjust because of serious procedural irregularity.  The main basis on which the appeal was allowed by Russell J arose from a legal argument that had not been raised in the grounds of appeal, had not been addressed by either party, and was in any event incorrect.  Her other criticisms of the approach of the trial judge cannot be sustained, and in certain respects she went beyond the proper reviewing role of an appeal court.

The background
The case concerns D, a boy now aged 5.  His parents are both Italian nationals, who have known each other for over twenty years.  The father moved to England in 2001 and the mother in 2003.  The following year, their relationship began and they lived together, with each of them working. 

In 2012, D was born.  Both parents were involved in his care.  In mid-2015, the father lost his job and remained at home for a time.  By then there were difficulties in the parents' relationship, and they considered moving to live elsewhere in Europe.  However, their relationship finally broke down after a visit to Italy in November 2015.  On their return, they continued to live together in a state of great unhappiness until the father moved out of the rented home in April 2016 and the mother moved elsewhere in May.  Care of D was shared equally between them from then on. 

On 4 April 2016, the mother issued an application in the Family Court seeking permission to remove D to live in the parents' home region in Italy.  If she was unsuccessful in obtaining this permission and had to remain in England, she proposed that D should live with her and stay with his father on five days a fortnight in term time and half the school holidays.  The father opposed the mother's application to relocate and proposed that they should share the care of D equally.

The key dates thereafter are these:

The decision-making framework in the Family Court
The ultimate decision in this case of course turned on the court's assessment of D's welfare, having regard to the matters in the welfare checklist at s.1(3) Children Act 1989.  Procedurally, the case had to be dealt with in accordance with the Family Procedure Rules 2010.  In particular, the overriding objective required the court to deal with the case justly, having regard to any welfare issues involved (r.1(1)), and in a way that was proportionate to the nature, importance and complexity of the issues (r.1(2)(b)). 

More particularly, the procedure for an application of this kind is laid down in Part 12 of the Rules, where Rules and Practice Directions make provision for every aspect of the process.  For present purposes, the central procedural pillar is contained in Practice Direction 12B – the Child Arrangements Programme (CAP).  This comprehensive code is designed to promote safe, child-focused solutions, preferably by agreement.  Some salient features for present purposes are:

As well as these general procedural requirements, Practice Direction 12J sets out in greater detail what the Family Court or the High Court should do in any case in which it is alleged or admitted, or there is another reason to believe, that the child or a party has experienced domestic violence or abuse perpetrated by another party, or that there is a risk of such violence or abuse.  The version of the Practice Direction that was in effect at the time of the previous hearings in this case underwent some amendment with effect from October 2017, but the changes are not significant for the purposes of the present decision.  I therefore set out the relevant parts of PD12J in its current form.

Paragraph 3 defines domestic abuse:

" "domestic abuse" includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment;

 "coercive behaviour" means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim;

"controlling behaviour" means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour;

Paragraphs 4 to 8 set out "General Principles":

"4.  Domestic abuse is harmful to children, and/or puts children at risk of harm, whether they are subjected to domestic abuse, or witness one of their parents being violent or abusive to the other parent, or live in a home in which domestic abuse is perpetrated (even if the child is too young to be conscious of the behaviour). Children may suffer direct physical, psychological and/or emotional harm from living with domestic abuse, and may also suffer harm indirectly where the domestic abuse impairs the parenting capacity of either or both of their parents.

5.  The court must, at all stages of the proceedings, and specifically at the First Hearing Dispute Resolution Appointment ('FHDRA'), consider whether domestic abuse is raised as an issue, either by the parties or by Cafcass or CAFCASS Cymru or otherwise, and if so must – 

6.  In all cases it is for the court to decide whether a child arrangements order accords with Section 1(1) of the Children Act 1989; any proposed child arrangements order, whether to be made by agreement between the parties or otherwise must be carefully scrutinised by the court accordingly. The court must not make a child arrangements order by consent or give permission for an application for a child arrangements order to be withdrawn, unless the parties are present in court, all initial safeguarding checks have been obtained by the court, and an officer of Cafcass or CAFCASS Cymru has spoken to the parties separately, except where it is satisfied that there is no risk of harm to the child and/or the other parent in so doing.

7.  In proceedings relating to a child arrangements order, the court presumes that the involvement of a parent in a child's life will further the child's welfare, unless there is evidence to the contrary. The court must in every case consider carefully whether the statutory presumption applies, having particular regard to any allegation or admission of harm by domestic abuse to the child or parent or any evidence indicating such harm or risk of harm.

8.  In considering, on an application for a child arrangements order by consent, whether there is any risk of harm to the child, the court must consider all the evidence and information available. The court may direct a report under Section 7 of the Children Act 1989 to be provided either orally or in writing, before it makes its decision; in such a case, the court must ask for information about any advice given by the officer preparing the report to the parties and whether they, or the child, have been referred to any other agency, including local authority children's services. If the report is not in writing, the court must make a note of its substance on the court file and a summary of the same shall be set out in a Schedule to the relevant order."

Paragraphs 11-14 relate these general principles to the FHDRA.  Paragraph 11 emphasises the importance of receiving the safeguarding letter, and paragraph 14 provides:

"14. The court must ascertain at the earliest opportunity, and record on the face of its order, whether domestic abuse is raised as an issue which is likely to be relevant to any decision of the court relating to the welfare of the child, and specifically whether the child and/or parent would be at risk of harm in the making of any child arrangements order."

Paragraph 16 requires the court to determine as soon as possible whether it is necessary to conduct a fact-finding hearing in relation to any disputed allegation of domestic abuse in order to provide a factual basis for its welfare determination.

Paragraph 17 requires the court to consider, in determining whether it is necessary to conduct a fact-finding hearing, a range of matters, including:

"(a) the views of parties and of Cafcass

(g) whether the nature and extent of the allegations, if proved, would be relevant to the issue before the court; and

(h) whether a separate fact-finding hearing would be necessary and proportionate in all the circumstances of the case."

To sum up, the CAP provides a structured framework for progressing a case of this kind, and the integrated provisions of PD12J forcibly remind the court of the seriousness with which it needs to consider domestic abuse in its widest sense wherever it is alleged.  So, where allegations of domestic abuse have been made, under paragraph 5 of PD 12J the court:

"must consider the nature of any allegation, admission or evidence of domestic abuse, and the extent to which it would be likely to be relevant in deciding whether to make a child arrangements order and, if so, in what terms;"

This requires the court to evaluate the seriousness of the allegations, the nature of the evidence about them, and their potential relevance to the decisions that must ultimately be taken. 

I will now describe the five stages of the proceedings: the FHDRA, the DRA, the final hearing before HHJ Owens, the appeal to the High Court, and the appeal to this court.

This took place before District Judge Jenkins on 1 June 2016.  The parents were represented by counsel.  Before the court were the mother's application, the father's response and the Cafcass safeguarding letter.  In her Form C1A, the mother stated that she had experienced emotional, psychological and financial abuse, and that D had experienced emotional and psychological abuse.  She gave details of 16 matters between the breakdown of the relationship in December 2015 and the end of March 2016.  These included four occasions on which the police had been called out, twice by each parent.  In his response, the father complained of the mother's erratic, bullying behaviour, and replied to each of the 16 matters.  He admitted to having recorded a conversation between the mother and her own father, excusing this on the basis that he feared that they were planning to remove D to Italy.  This matter, and the father's subsequent conduct in unilaterally giving notice on the parties' rented accommodation, were both referred to in the judgment of HHJ Owens.

The Cafcass safeguarding letter gave details of telephone conversations with each parent in which the mother expressed concerns about the father's behaviour and fears about what he might be capable of, and the father expressed concerns about the mother provoking arguments and trying to cut him out of D's life.  In the light of the alleged domestic abuse, the recommendation was for Level 2 police checks and a welfare report from Cafcass.

The District Judge made a detailed order.  It included a consent order for the division of D's time between his parents, directions for Cafcass to file the enhanced police checks and a welfare report, and directions for the parents to file statements.  In the mother's case, her statement was to cover certain specific matters – these did not include specifically complaints of domestic abuse but the statement was to include any relevant background information and details of all welfare concerns she had in respect of D living with his father.  The order also recorded that: "Having considered the documents, received the representations of the parties, and the safeguarding report, a separate fact-finding hearing is not necessary in this case."

It is beyond the scope of this judgment to set out the details of the cross-allegations between the parents.  Having read the papers that were available to the District Judge, it is immediately apparent to me why it was not thought that a separate fact-finding hearing would be necessary.  That was not to say that the court could not take into account matters alleged by the parties against each other, but the process was not set up so that those issues would be front and centre.  Again, having read the papers, I consider that to be understandable, and I also note that the parties were represented at the hearing.

This took place before District Judge Matthews on 24 August 2016.  Both parties were again represented, in the mother's case by the same counsel as before.  On this occasion, the court had more information in the shape of the parents' statements and the first Cafcass report.  The mother's statement referred in further detail to the father's behaviour and its effects upon her, and exhibited a letter from the domestic abuse outreach service that she had consulted.  The father's statement reiterated his responses.  

The Cafcass report on 23 August referred to lengthy conversations with the parents.  Having detailed these, the author, Ms Brown, expresses this professional judgement:

"The parents make allegations and counter allegations about each other which are remarkably similar; they both say the other is manipulative and has bullied the other during and throughout the breakdown of their relationship…  In my view they are both still caught up in the breakdown of their relationship and their experience of the other." 

She recommended that the mother be given permission to relocate to Italy with D, and that until that point, care of D should continue to be shared, but with fewer movements backwards and forwards between the parents.

The District Judge made another detailed order, requiring an addendum to the Cafcass report to cover enquiries of the nursery and the Level 2 police checks.  Other matters were agreed, including the division of D's time, and the matter was set down for a final hearing, following the filing of updating statements from the parents.

The final hearing before HHJ Owens
The above directions were complied with.  Of most significance was the second Cafcass report.  The enhanced police checks had been carried out and Ms Brown reported that:

"It continues to be my view that there are no current safeguarding concerns regarding the care of D in either parents care." 

She did not add to her view in relation to relocation and requested the court to make a decision.  If D remained in England, her apparent recommendation (the report is not entirely clear) was for him to have his main home with one or other parent, or perhaps a week on/week off arrangement, but it seems that in her oral evidence she recommended the former. 

The final hearing took place on 12/13 January 2017.  Both parents were represented by counsel, neither of whom had appeared previously.  On the first day, the judge heard evidence from both parents and from Ms Brown.  On the second day, she gave a detailed written judgment in which she refused the mother's application to relocate and directed that D should live week on/week off with each parent.

It is necessary to quote quite extensively from the judgment.  It runs to 22 pages.  It is clear and comprehensive.  It covers the essential issues, and it reasons the Judge's decisions so that the parties and others, including this court, can understand why she reached them.  It follows these headings:

No complaint is made about the Judge's summary of the background or of the law, which was encompassed in the first four pages.

The section entitled 'Findings' begins in this way:

"Part of the background to these proceedings is that both parties have made allegations of emotional and financial abuse against the other.  These allegations relate to the period of their relationship breaking down and, as noted by Ms Brown in her reports, are strikingly similar.  I agree with her assessment that they are largely evidence of the parties struggling to cope with the breakdown of their relationship and the subsequent shock and sense of loss this has entailed.  The District Judge who previously dealt with this case did not consider that a separate fact-finding hearing was necessary and recorded this on the face of his order dated 1 June 2016.  He also did not order any schedules in respect of the allegations and his directions in respect of the parties' evidence for the final hearing (set out at A45-46) focused on the welfare checklist considerations in respect of the relocation proposal rather than the standard directions potentially available to him in relation to disputed allegations in respect of which the Court would need to make findings at this final hearing.  I also made it very clear at the commencement of this final hearing that I did not consider it necessary to conduct a detailed forensic examination of the parties' respective allegations as I did not think that they were directly relevant to the issues in the case about where and with whom D should live.  Put bluntly, there are no safeguarding issues established in relation to either parent's ability to care for D or make arrangements in relation to his having contact with the other parent.  This is confirmed by Ms Brown's appraisal of the situation as set out in her evidence, and as I have already noted.

I have therefore approached my findings by considering the welfare checklist as follows: … "

Over the course of the next 13 pages, the Judge then considered each of the checklist factors.  Her findings included these matters:

"In relation to the mother, there is evidence before me that she has undergone counselling and has clearly had difficulties coping with the parties' acrimonious relationship breakdown.  She has provided a letter from her counsellor at B32-34 dated 26 June 2016.  It is also clear from Ms Brown's evidence to me that the mother told her clearly how unhappy she was.  However, the mother also told me that she is not currently having to see her counsellor regularly, though she has seen her once since the letter of 26 June 2016.  The mother also told me that she is not currently prescribed any medication such as anti-depressants or sleeping tablets.  The father told me that he did not accept that the mother's support network was as limited as she sought to portray and referred to various friends which they had had in common, prior to the break-up and who had offered support to the mother since.  I would note that it is not at all unusual for one party to a relationship breakdown to feel differently about friends who are friends of both parties prior to the relationship ending.  I can therefore understand that the mother may not necessarily want to continue such friendships at this point.  However, it does seem apparent to me that the mother is capable of making new friendships, despite the limitations that working and caring for a child may place on her.  I also note and accept that the mother has no family in the UK as all of her family are based in Italy.  This is also true for the father.  I have no doubt that if I refuse [the mother]'s application she will be distressed and this will potentially have an impact upon her care of D.  However, I am not persuaded that this will be a long-term impact upon either her or in turn upon D.  She has made sufficient recovery from needing counselling to currently not requiring medication and not needing ongoing counselling.  She also has a good job and is clearly therefore not so adversely affected by her current situation as to be unable to work.  From seeing her give evidence, I conclude that she is a thoughtful and intelligent person who will no doubt seek to do the best with the circumstances in which she finds herself.  That is, after all, what she has been doing to date.  Equally I have no doubt that ideally she would benefit from having the support of her family immediately available to her.  I suspect that is true of many families, barring some exceptional unsuitability on the part of the family concerned (and which is not the case here).  However, as the father told me in his evidence the couple did make the choice to have a child at some distance from their respective families.  Of course, a lot has changed since that decision, and in particular the parties have separated so the mother now finds herself parenting D on her own.  Despite this, I do not find that she is as isolated as she sought to suggest to me.  It is also clear from her evidence to me that she will stay in England if her application is refused, so this is not a case where she will have to move regardless of the outcome."

"The evidence I heard from Ms Brown was to the effect that there was no reason for D not to move to Italy and that any loss arising from not seeing his father as frequently would be ameliorated by using indirect forms of contact and D being able to have a greater relationship with his wider family.  I'm afraid that I do not agree with her welfare analysis in this respect.  I was much struck by her inability to list any other positives beyond that it would address the unhappiness of the mother.  I find that D's welfare requires that he maintains a relationship with both of his parents and that the quality of his relationship with his father will inevitably suffer significantly if D were to move to Italy.  This loss would not be sufficiently ameliorated by indirect contact because D is so young and indirect forms of contact have already been problematic for him during these proceedings.…  A closer relationship with D's wider maternal and paternal family would no doubt be a benefit to him, but it is not such a benefit that it outweighs the loss which I find he would suffer if he were not to have as much contact with his father as he does now.  In terms of D developing his sense of identity and cultural heritage, I do agree with the submissions made by [counsel for the father] that this can be achieved through his parents, who are both Italian.  It can also be achieved by trips to Italy during the school holidays, I find.  There is no evidence before me to the effect that the mother or the father would not be able to take D to Italy to stay with their respective families for such trips."

In the remaining five pages, the Judge stated her conclusions.  Like the Cafcass officer, she regarded this as a finely balanced decision.  Either outcome would have an impact upon the disappointed parent and consequently upon the child.  She noted that the mother was proposing to move to an area she knows well and that D has visited, but that she had not provided a level of detail about her plans which would assist the court in making such a significant decision in relation to D.  There were issues about accommodation, education and employment.  Nonetheless, she was certain that the mother's motivation for the move sprang from a genuine belief that she could offer D the better life in Italy and did not stem from a desire to remove the father from D's life.  She was equally certain that the father's motives in opposing the application genuinely related to D's welfare and his concern to maintain a close relationship with him.  The Judge then concluded:

"In light of my findings, the lack of detail in her plans, coupled with the impact upon D of losing regular and frequent direct contact with his father, when balanced against the impact on D of his mother remaining in England, leads me to conclude that the balance tips against her application."

She then turned to the question of the arrangements for D in England:

"As noted by Ms Brown, both parties agreed that the current arrangements are not working for D.  D needs there to be fewer handovers and that is accepted by all concerned.  Ms Brown recommended that D should live with his mother and spend time with his father.  Her reasoning for this, as amplified in evidence to me, is twofold.  Firstly, she has concluded that D needs to be with one parent rather than the other due to the parents' inability to effectively communicate with each other at present.  Secondly, she preferred the practicalities of where the mother lives in terms of size of accommodation and proximity to D's school.  I'm afraid that again I do not accept her recommendation this regard.  In relation to whether D should live with one parent rather than the other and spend time with the parent with whom he is not living, there is clear authority that a failure to be able to communicate effectively is not a bar to shared care arrangements.  I have looked at the actual facts of this case before me.  The shared care arrangement has been in place for some months now for D and he is thriving despite the niggling, petty issues that each parent has at times taken with the other over parenting practices.  The only major problem with this shared care arrangement, I find, is the frequency of handovers that promotes instability. … Frequent handovers can also lead to greater opportunities for conflict between the parents until they are able to move on. Ms Brown is confident that they can make the necessary progress to achieving effective communication, it is just that they are not there yet.  I agree with her analysis in this respect.  However, that also serves to underline that failure to communicate is seemingly a temporary issue for these parents.  This case is not one that has all the hallmarks of a chronic inability to communicate and I am confident that both parents are capable of putting D first and achieving effective communication as a result of the desire to do what is in D's best interests.

Whilst there is a degree of inability to communicate, I find that a shared care arrangement actually neutralises any opportunity for one party to seek to exert greater rights than the other party.  It also minimises change for D as that is the reality of most of his life, both before and after the parents separated.  The parties and Ms Brown have told me how child focused each of their properties are.  Both are in rented accommodation, which inevitably brings a risk of tenancy being terminated earlier than anticipated in certain circumstances.  It is true that the father's accommodation is less ideal in that he has to sleep in the lounge on a futon when D stays with him.…  However, I do find that his accommodation is good enough at present for D to continue living there some of the time.  I also note that it is by no means certain that the mother's finances will enable her to maintain her current accommodation.  So to make a decision that is predicated on her having a two bedroomed property does not seem sensible.  [In relation to schooling], the journey time is a method of travel which he has to use from his father's address are not exceptional, and many thousands of children of his age have to endure far lengthier and [more] awkward journeys than his.

In light of this, I cannot accept Ms Brown's recommendation for D to live with his mother and spend time with his father.  I will make a child arrangements order for D to live with both of his parents.  I do think that a two weekly cycle, which both parents propose, is suitable for D as that minimises handovers.  I am told that both parents can arrange their work around D's schooling as their employers are flexible. I am not persuaded that an arrangement whereby D spends significantly more time with one parent than the other, even under a shared care arrangement is in D's best interests.  That risks creating a perception in favour of one parent over the other.  In these arrangements, while they are still learning to move on and communicate effectively, that is clearly not in D's best interests.  It seems to me that the best arrangement for D would be one where one week and weekend he lives with one parent, and the next he lives with the other." 

The resulting order then went on to include a detailed schedule concerning holiday arrangements, Skype contact, and travel abroad.

The appeal to the High Court
The mother's application for permission to appeal was listed (with the appeal to follow if permission was granted) before Russell J on 5 May.  By way of documents, she had Mr Bailey's grounds of appeal and skeleton argument and the response of the father in person.

The mother's grounds of appeal were these (I paraphrase):

(1) In a finely balanced case, the Judge was wrong to determine at the outset of the hearing that the mother's allegations against the father were not directly relevant to the issues in the case.  She should have made findings about these matters.

(2) The Judge placed too much weight on the absence of precise detail in relation to the mother's relocation plans without seeking similar information about the parties' prospects in the UK.

(3) The Judge made certain mistakes about the practical arrangements in Italy.

(4) The Judge was wrong to find that D's cultural heritage could be sustained by means of trips to Italy, given the uncertainty as to his and his parents' future immigration status in the UK.

As the father is now reliant on pro bono representation, we do not have a transcript of the hearing before Russell J.  However, sufficient information is available from the terms of her order and judgment.

Unusually, the order of 27 May (which bears the date 5 May) purports to have on its face the Judge's reasons

"REASONS (in short)

(1) The judge correctly identified the relevant law and case law which applied and the need for a welfare analysis as set out in K v K (Relocation: Shared Care Arrangements) [2011] EWCA 793; nonetheless, her decision-making was fundamentally flawed as she considered and decided the Appellant's application to relocate prior to deciding on the future arrangements for the care of the child (which were in dispute) contrary to the case law.

(2)  This approach, which is wrong in law, conflated the issues of child arrangements with the relocation application and is plain from both the judgment and the order of the judge that she considered the application to relocate before considering the arrangements for the child.  Where the arrangements for the care of a child are in dispute, as they were in this case, they must be resolved before an application for removal from the jurisdiction can be considered.  See Payne v Payne [2001] EWCA Civ 166; Re J (Leave to Remove: Urgent Case) [2007 1 FLR 2033.

(3)  In respect of the decision for shared care the judge failed to give adequate reasons for departing from the recommendations of the Cafcass officer that it was in the best interests of the child to live with his mother and spent time with his father."

There may be circumstances in which it is helpful for short reasons to be put on the face of an order, for example where the parties need to know them immediately and the full judgment cannot yet be given.  In this case, it is not clear what was gained by the reasons appearing on the order, because it was produced at the same time as the draft judgment was circulated.  It has led to some debate about the judge's actual reasons for allowing the appeal.  The order refers to two reasons (mistake of law and inadequate explanation for departing from the Cafcass officer's recommendation on shared care), while the judgment refers to two reasons (mistake of law and failure to consider or make findings about domestic abuse) alongside wider strictures.
Be that as it may, the judgment, which runs to 3½ pages was handed down on 26 May and published on 9 June.  It is critical, indeed strongly critical, of the approach of the trial judge.  Omitting only short narrative sections, it reads as follows:

1. …

2. … Permission was granted and the court heard the appeal. The appeal was allowed as the trial judge had made a fundamental procedural error in failing to resolve the issue of the future care of the child prior to considering the application for relocation.

1. In addition, the judge failed to consider or make any finding in respect of complaints of controlling and coercive behaviour on the part of [the father] alleged by [the mother]. The effect of all forms of domestic abuse on children and their welfare has long been recognised by the Family Court.

1. …

2. …

Hearing and evidence
1. … [The mother] had made numerous complaints about [the father]'s controlling and emotionally abusive behaviour, which if true would be capable of amounting to the coercive behaviour set out in s77 (1) of the Serious Crime Act 2015 and would have fallen within the Statutory Guidance from the Home Office which followed the enactment of that legislation. The Family Court should be familiar with the guidance and take it into account when reaching any conclusions about conduct amounting to domestic abuse.

1. As it was, in this case the decision of the judge not to carry out any fact-finding meant that there was no consideration of potentially abusive and controlling behaviour, its effect on the child's mother and ultimately on the child himself. It is questionable whether a decision about his care and the continuance of a shared care regime could have been properly informed and such ignorance is likely to have been antipathetic to his best interests.

1. In considering this application to appeal I have in mind of CPR 1998 r52.11 and consider that there has been a serious procedural irregularity in the proceedings principally because the judge failed to approach the case as she should have done by considering and deciding the question of the child's main carer and child arrangements, prior to considering the application to relocate. It is well established law that when the future care of a child is in dispute this must be resolved before an application for removal from the jurisdiction can be considered. The case law on relocation applications, going back over fifteen years and more, commencing with the case of Payne v Payne [2001] 1FLR 1052 (see Butler-Sloss P at [80]), makes it clear that the welfare of a child is best served by considering issues of care, and who can best provide that care is an issue that is to be decided in advance of considering relocation.

1. It is abundantly clear from her judgment that the judge, who had correctly identified the case law in respect of relocation cases and set them out at the beginning of her judgment, started where off where she should have concluded. It is not until the end of her judgement that the judge considered what arrangements there should be for the child and her analysis and reasoning for that, most fundamental, part of her decision is dealt with barely any reference to, or analysis of, the s1(3) welfare checklist; or of the issues directly connected with the care of the child, which had concerned the Cafcass Officer.

1. The judge's belated, deferred analysis of the future care of this child, who is best able to meet his needs, both at present in and in the long term and what arrangements would meet his best interests as set out in her judgment, is flawed; not only because it was carried out after she had decided on the issue of relocation, but also because the judge's consideration of this child's overall welfare needs were considered within the context of relocation not as part of the necessary primary analysis of which parent was best placed to meet those needs. While there have been instances where a child's welfare has required that the court consider future care and relocation at once this is not [such] a case (see in Re J (Leave to Remove: Urgent Case) [2007] 1 FLR 2033).

1. Secondly, the judge was wrong not to have considered and made findings in respect of the complaints of abusive and controlling behaviour on the part of [the father] as alleged by [the mother]. It was the Cafcass officer's view that the child was living between, "what must be [an] incredible strain that both parents are clearly under". The judge simply split the child's time between two homes in what may seem to be an even-handed approach to a difficult and all too common problem. This is unsophisticated, over-simplistic approach, all too often taken by the Family Court when making child arrangements orders, to attempt to adhere to the amendments to the CA brought in by the Children and Families Act 2014 by making an order for shared care which is an even split of time and to compel parents to co-operate. Splitting a child between two homes which are antagonistic and unsupportive of each other is not consistent with the best interests of a child nor congruent with that child's welfare.

1. Further, in this case, the judge's consideration, and dismissal of the Cafcass officer's recommendations, and her reasons given for the latter, as set out in the very last part of her judgment was at best superficial. Even if the judge's reasons for not following the Cafcass officer's recommendations could be considered sufficient (applying the dicta in Re J (Children) (Residence: Expert Evidence) [2001] 2 FCR 44) in this case, as it is clear from the structure of her judgment, the judge had, and was, considering the recommendations of Ms Brown primarily within the context of relocation.

1. It is not clear from the judgement why the judge considered it appropriate not to carry out any fact-finding, as if there was any basis for them, [the father]'s behaviour towards [the mother] is ultimately likely to have an effect on D. The judge did not apply, make reference to, or consider in her judgment, FPR 2010, PD12J nor why it would not have applied in this case, as allegations of coercive behaviour had been raised. Instead she relied on previous case management decision by a District Judge that a separate fact finding was not necessary as a justification for carrying out no fact-finding at all in respect of [the father]'s conduct during co-habitation and in its aftermath, and of the parties' ability to work together for the benefit of D. This will have a direct impact on D; the probable ability of [the father] to care for D on his own cannot be divorced from the effect on the child of the hostility between his parents, distress caused to his mother and the longer-term impact on the child of being split between two disparate households which are in conflict. It is questionable whether it is in any child's best interests to become or grow up in a milieu part of which is one parent's (or carer) controlling behaviour in respect of that child's co-parent (carer).

1. The appeal is allowed.

1. Remitted to a different circuit judge for re-hearing in the first instance of the arrangements for D and, thereafter, of any renewed application by [the mother] to relocate to Italy. The case is to be listed before the designated Family Judge for case management and allocation in the first instance.

1. In addition, this court will order that D is to be separately represented and made a party to the proceedings under FPR 2010, r16.2 (1) as it is in D's best interests to do so. There are arguments that should be put forward on behalf of the child in respect of his long-term welfare and location, and his heritage. This child is of Italian heritage and most of his extended family live in Italy, while not a deciding factor it is one which should command some consideration by the tribunal deciding his future. The fact that as EU citizens his parents' residence and their status in the UK no longer has the certainty it previously had, and the possibility that relocation to Italy may become a necessity is a factor that should, properly, have been considered by the trial judge. As such this child falls within FPR 2010; PD16A paragraph 7.2 (b) and (g).

1. Subject to any representations to the contrary from Cafcass, [the Cafcass officer] is appointed as his guardian.

1. No order as to costs."

The appeal to this court
In their grounds of appeal Mr Garrido QC and Dr George identify five respects in which they argue that Russell J was wrong in law:

(1) In relation to her interpretation of the correct approach to determining an application for leave to remove. 

(2) In relation to what was said to be the necessity for the trial judge to make findings in respect of allegations of domestic abuse. 

(3) In relation to the circumstances when a shared care arrangement may be appropriate. 

(4) In relation to the extent to which the judge must justify departing from a Cafcass recommendation. 

(5) In relation to the need for the court to consider the effect of the departure of the United Kingdom from the European Union.

Consideration was also given at this hearing to the justification for appointing a Children's Guardian in a case of this kind. 

In his response on behalf of the mother, Mr Bailey says that her appeal to the High Court had been based squarely on the assertion that in her welfare evaluation HHJ Owens was not able to properly consider the impact upon the child of any domestic violence alleged by the mother and the father as she did not allow the allegations to be investigated.  He does not seek to uphold Russell J in relation to any of the other matters that arise on this appeal, and explains that the argument about the trial judge's approach to relocation did not feature at the appeal hearing at all. 

I shall consider each of the grounds of appeal in turn.

Relocation applications are among the more difficult applications that come before the Family Court.  The effects of distance on relationships, often accompanied by cultural and linguistic factors that may shape a child's lifelong identity, raise the stakes above those found in most domestic cases.
The modern approach to relocation applications acknowledges the anxiousness of these decisions.  Recent authorities in this court aim to help judges reach sound, welfare-based conclusions by approaching relocation cases, whether international or internal, on the same principled basis as with any other important decision concerning children. 

In every case, whether in the private or public law jurisdiction, the court's ultimate task is to identify the available options, and to select the one that best meets the child's welfare needs.  The fact that one option would involve the child moving overseas does not lead to any difference of approach.  This is made clear in the recent authorities:

"Each realistic option for the welfare of a child should be validly considered on its own internal merits (i.e. an analysis of the welfare factors relating to each option should be undertaken). That prevents one option (often in a relocation case the proposals from the absent or 'left behind' parent) from being sidelined in a linear analysis. Not only is it necessary to consider both parents' proposals on their own merits and by reference to what the child has to say but it is also necessary to consider the options side by side in a comparative evaluation. A proposal that may have some but no particular merit on its own may still be better than the only other alternative which is worse." 

Re F (International Relocation Cases) [2015] EWCA Civ 882 per Ryder LJ at [30], endorsed by McFarlane LJ at [50].

"… the only test that the court applies is the paramount principle as to the welfare of the child. The application of that test involves a holistic balancing exercise undertaken with the assistance, by analogy, of the welfare checklist, even where it is not statutorily applicable. The exercise is not a linear one. It involves balancing all the relevant factors, which may vary hugely from case to case, weighing one against the other, with the objective of determining which of the available options best meets the requirement to afford paramount consideration to the welfare of the child."

Re C (Internal Relocation) [2015] EWCA Civ 1305, per Vos LJ at [82].

Nor is there any principle that requires the court to settle the division of a child's time between parents before considering an application to relocate.  On the contrary:

"… I would not expect to find cases bogged down with arguments as to whether the time spent with each of the parents or other aspects of the care arrangements are such as to make the case "a Payne case" or "an In re Y case", nor would I expect preliminary skirmishes over the label to be applied to the child's arrangements with a view to a parent having a shared residence order in his or her armoury for deployment in the event of a relocation application.  The ways in which parents provide for the care of their children are, and should be, infinitely varied.  In the best of cases they are flexible and responsive to the needs of the children over time.  When a relocation application falls to be determined, all of the facts need to be considered."

K v K (Children: Permanent Removal from Jurisdiction) [2011] EWCA Civ 793, per Black LJ at [145].

So, in the present case there were these available options for D's future:

(1) Staying in England and sharing his time equally between his parents under the existing arrangements with frequent moves.

(2) Staying in England and sharing his time equally, week on/week off.

(3) Staying in England and having his main home with his mother, with substantial time spent with his father.

(4) Staying in England and having his main home with his father, with substantial time spent with his mother.

(5) Moving to Italy with his mother and having as much time as possible with his father.

Options that did not arise were:

(6) Remaining in England with his father, with his mother moving to Italy.

(7) Moving to Italy with both parents.

It can immediately be seen that of the five available options, (1) could be discarded by common consent, while (4) could be discarded because the father did not argue for it.  The judge was therefore left with three realistic options: (2), (3) and (5).  The father argued for (2), while the mother, supported by the Cafcass officer, argued for (5) or, failing that, (3).

Reading the judgment of HHJ Owens overall, it is apparent that she gave full consideration to each of the three realistic options.  It was not therefore correct, as Russell J put it, that "… the judge's consideration of this child's overall welfare needs [was] considered within the context of relocation…"  In her thorough survey of the welfare checklist, HHJ Owens looked at all the relevant considerations that arose from the evidence before coming to consider which option was for the best.  When moving on to state her conclusions, she had to start somewhere and it was entirely reasonable for her to address the relocation option first as it was the most fundamental one and the one that had led to the issuing of the proceedings.  In doing this and in finding (at page 20 of the judgment) that the balance tipped against it, she was reaching a decision in the context of all the evidence and with full awareness of the alternatives, which she then considered in her final three pages.  This was not in any sense a linear approach, but merely the consequence of the need to convey the court's decision in an orderly way.

In contrast, the approach of Russell J was that the court should have been "considering and deciding the question of the child's main carer and child arrangements, prior to considering the application to relocate" [original emphasis] and that it should have carried out "the necessary primary analysis of which parent was best placed to meet those needs."  Consistently with this, she remitted the case "for re-hearing in the first instance of the arrangements for D and, thereafter, of any renewed application by the mother to relocate to Italy."

The submission is made that this approach is entirely contrary to authority; it is explicitly linear and would lead to an inappropriate and impractical compartmentalisation that could only distort the proper decision-making process.

It is then submitted that Russell J fell into error when she referred to a passage from Payne v Payne [2001] EWCA Civ 166.  The passage referred to at [86] (the reference to [80] appears to be a typographical error) cannot be read as requiring the court to determine a "main carer" or make a choice about with whom the child should live before deciding the issue of relocation.
Finally, it is said that the assumption that a child should have a "main carer" that needs to be determined by the court is outmoded and discriminatory in a way that this Court has repeatedly sought to avoid.

In my view, each of these submissions is well-founded.

Further, and regardless of the merits of the intervention, Russell J was wrong to seek to determine an appeal on the basis of an issue that had not been raised in the grounds of appeal or argued by either party.  This approach amounted to a serious procedural error and was particularly unfair where it worked to the disadvantage of an unrepresented party.

I would therefore allow the appeal on this first ground.

Domestic abuse
The correct approach to allegations of domestic abuse is set out in PD12J.  It sets out a clear and helpful framework to ensure that full consideration is given to the grave effects of domestic abuse, and that proper weight is given to abuse where it is proved.  At the same time, the framework requires an exercise of judgement by the court in each case where the issue may arise.  Few relationships lack instances of bad behaviour on the part of one or both parties at some time and it is a rare family case that does not contain complaints by one party against the other, and often complaints are made by both.  Yet not all such behaviour will amount to "domestic abuse", where "coercive behaviour" is defined as behaviour that is "used to harm, punish, or frighten the victim…" and "controlling behaviour" as behaviour "designed to make a person subordinate…"  In cases where the alleged behaviour does not have this character it is likely to be unnecessary and disproportionate for detailed findings of fact to be made about the complaints; indeed, in such cases it will not be in the interests of the child or of justice for the court to allow itself to become another battleground for adult conflict. 

The task of identifying cases where allegations of domestic abuse require findings of fact to be made (either as part of a main hearing or at a separate fact-finding hearing) is the stock-in-trade of judges in the Family Court, who see private law disputes at every point on the spectrum of seriousness and are constantly making evaluations of this kind.  In doing so, they will have assistance from Cafcass, from the parties, and on occasion from their representatives.

In the present case, there is no doubt that the behaviour of the father had caused great distress to the mother.  That remains true, even if the feeling was mutual.  It was the responsibility of the court to consider at every stage of the proceedings what the relevance of this distress and its cause was likely to be to the issues that needed to be decided.  I am in no doubt that the court did give the necessary consideration to that question at each of the three hearings.  It rightly decided at the outset that a separate fact-finding hearing was not necessary.  It did not give directions for formal schedules, but it insisted on the enhanced police checks being completed.

Mr Bailey argues that the mother had a legitimate expectation that her allegations of abuse would be adjudicated upon at the final hearing.  By excluding this evidence, the judge could not understand the dynamic between the parents and therefore she could not properly perform the welfare exercise.

During his submissions to us, Mr Bailey was asked to explain how the Judge should have gone about adjudicating upon his client's allegations.  I invited him to identify whether there were any particular instances among her 16 allegations that the judge could have usefully investigated.  Mr Bailey was not able to identify any instances that would have lent themselves to detailed forensic investigation and was obliged to say that the Judge should have gone through them all.

It would be a misconception to believe that because there was not a trial of each complaint made by these parents (were that possible), the Judge did not take into account the nature of their relationship.  She had read the statements and reports and she had the opportunity to assess the parents when they gave their evidence.  The view of the Cafcass officer did not support this as being a case where domestic abuse was relevant to the issues.  There is no suggestion that the mother's counsel pressed for specific findings.  His opening position statement made complaints about the father's behaviour as one factor among many. 

As seen from the lengthy extract from her judgment that is cited above, the Judge gave careful attention to the mother's position.  She certainly did not minimise the impact of the decision upon her, but put it into its context.  Although the Judge did not mention PD12J by name, she squarely addressed the obligation to consider the nature of the mother's allegations and the extent to which they would be likely to be relevant.  Having set out the procedural background, she said she did not think that they were directly relevant to the issues of where and with whom D should live and she therefore did not embark upon a detailed forensic investigation of them.  In the light of the material that was before her, this was a judgement that she was fully entitled to make, and it was not inappropriate for her to express a view about this at the outset of the hearing so as to guide the oral evidence towards the central issues.   

Mr Garrido submits that Russell J was incorrect to say that the Judge did not consider the nature and relevance of the allegations.  He further submits that she was wrong to elevate the obligation to do that into an obligation to make findings of fact.  I agree with each of these submissions.  At no point does Russell J refer to the evidence to explain why the Judge's approach was wrong.  She raises the issue, but she does not answer it.  Nor does she refer to the allegations made by the father against the mother. 
I would also allow the appeal on this ground.

Shared care
When considering what arrangements are best for a child, the court's powers are broad.  There was a time when the orthodox view was that shared care should not be ordered where the parental relationship is bad.  There will certainly be cases where that will be the conclusion on the facts, but the authorities show that there is no longer a principle to this effect: A v A (Shared Residence) [2004] EWHC 142; Re R (Shared Residence Order) [2005] EWCA Civ 542; Re W (Shared Residence Order) [2009] EWCA Civ 370.  HHJ Owens was referred by counsel for the father to the first of these cases, so she no doubt had them in mind when she made the observation that "there is clear authority that a failure to be able to communicate effectively is not a bar to shared care arrangements." 

It may be that equal shared care arrangements are unusual for children of D's age, but HHJ Owens gave several reasons for deciding that a week on/week pattern was suitable "on the actual facts of the case before me."  She referred to the fact that it minimised change as it had been the reality for D for most of his life, and that D was thriving despite the difficulties.  She noted the likelihood that the parents' communication would improve.  She considered that equal shared care would neutralise any opportunity for one parent to seek to exert greater rights than the other. 

When dealing with this issue, Russell J said this:

"The judge simply split the child's time between two homes in what may seem to be an even-handed approach to a difficult and all too common problem. This is unsophisticated, over-simplistic approach, all too often taken by the Family Court when making child arrangements orders, to attempt to adhere to the amendments to the CA brought in by the Children and Families Act 2014 by making an order for shared care which is an even split of time and to compel parents to co-operate. Splitting a child between two homes which are antagonistic and unsupportive of each other is not consistent with the best interests of a child nor congruent with that child's welfare."

I am afraid that analysis is wrong in a number of ways.  In the first place, the approach of HHJ Owens was the very opposite of how it is characterised.  In no sense did she make the child arrangements order in a weak attempt at even-handedness.  Nor did she make it because of the amendments to the Children Act in October 2014, which do not speak for equal shared care but provide that the court is to presume, unless the contrary is shown, that involvement of a parent in the life of a child will further the child's welfare (s.1(2A)), but that this does not mean that there should be any particular division of a child's time (s.1(2B)).  Instead, Judge Owens made her order for the reasons that she gave and she should not have been castigated for doing so.  Secondly, the last sentence in the above passage is plainly wrong as a matter of law and goes beyond the proper role of the appeal court, which is to review the decision under appeal, not to substitute the view of the appeal court for that of the judge who heard the evidence.

In my view, this ground of appeal also succeeds.

Differing from professional advice
Professional advice is usually of great assistance to judges, but in the end it is judges that decide cases and it is not uncommon for them to differ from advice, particularly where the decision is finely balanced.  Here, it can be seen that HHJ Owens was assisted by the evidence of the Cafcass officer in a number of ways, but that she was unable to agree with her ultimate recommendations.  In doing so, she explained quite clearly why she differed.
In Re J (Residence: Expert Evidence) [2001] 2 FCR 44, (a decision referred to by Russell J), Hale LJ said this:

"It is of course well-established that, if there are professional witnesses who have been asked to advise the court by way of a section 7 report, the court should at least do those witnesses the courtesy of explaining clearly the reasons for departing from their recommendations (although it has always been acknowledged that the court has the power to do that)."

Mr Garrido submits that this is exactly what the trial judge did in the present case, and that in fact she went some way beyond the necessary minimum.  I agree.  Russell J was wrong to describe the Judge's approach as "at best superficial" and she was further wrong to say that the Judge was considering the Cafcass recommendations primarily within the context of relocation, when in fact her reasons for differing were separately expressed in relation to both of Ms Brown's recommendations.  In my view, this ground of appeal also succeeds.

Russell J considered that the Judge should have considered this issue:

"The fact that as EU citizens his parents' residence and their status in the UK no longer has the certainty it previously had, and the possibility that relocation to Italy may become a necessity is a factor that should, properly, have been considered by the trial judge."

There are two reasons why this statement is unhelpful.  In the first place, the reason why Brexit was not mentioned by the trial judge is because it was not mentioned in the evidence or submissions she heard.  But secondly, and of more general application, the consequences of the UK's departure from the EU are presently unclear, and there is no sound basis on which courts can factor in the hypothetical possibility that an EU national's immigration position might at some future date become precarious.  The task for trial judges of deciding these cases is difficult enough without adding imponderables of this kind.

Joining D
Finally, although it does not form part of the grounds of appeal, I am clear that the circumstances of this case did not warrant an order for D to become a party to the proceedings for the purpose of any rehearing.   None of the criteria under PD16A paragraph 7.2 is met.  Russell J cites two subparagraphs.  Subparagraph (b) is engaged where the child has a standpoint or interest which is inconsistent with or incapable of being represented by any of the adult parties, but that is not the case here.  Subparagraph (g) applies where there are international complications outside child abduction, in particular where it may be necessary for there to be discussions with overseas authorities or a foreign court, but again that does not arise in the present case, which simply concerned a relocation dispute between parents who are foreign nationals.  Finally, before an appointment of this kind is made, the CAP provides that advice from a Cafcass manager must be sought.

Drawing matters together, my conclusion is that there was no proper basis for interfering with the trial judge's decision.  As with any finely-balanced case, the outcome might have gone either way, but HHJ Owens was entitled to reach the conclusion that she did and the criticisms of her approach were misplaced.  I would therefore allow this appeal and restore her order.

Lord Justice Newey:
I agree.

Lord Justice Singh:
I also agree.  I add a brief observation of my own only because this is the first appeal of its kind to come to this Court since the rule changes in 2016 which provided for private law family appeals to go to the High Court. 

83. Although the particular appellate jurisdiction with which this case is concerned may be new, the principles which an appellate court should apply when exercising a jurisdiction such as this are familiar from other contexts, for example when there is an appeal from the High Court to this Court or from the County Court to the High Court.  The equivalent rule in the Civil Procedure Rules as amended is r.52.21(3)(a) and (b).  There is plenty of guidance available as to how the word "wrong" in sub-paragraph (a) has been understood: see the White Book, Civil Procedure 2017, vol.1, pp.1817-1818.