The Court of Appeal has allowed a mother’s appeal and quashed a Circuit Court order transferring her young son’s primary residence to his father. It held that the custody issue was outside the scope of the appeals before the Circuit Court and that the mother had not received fair notice that her status as the child’s primary carer was at risk.
The judgment, delivered on 12 June 2015, concerned appeals over the mother’s application to move with the boy to London and the father’s application for increased access. The Circuit Court refused the relocation application but also directed that the boy live primarily with his father. Neither party had asked that court to remove the mother as primary carer.
The Court of Appeal said the Circuit Court was acting in its appellate role and could affirm or vary the District Court’s decisions. It could not use those appeals to decide a separate custody issue as if it were hearing that issue for the first time. The relocation application did not give the court a free-standing power to make an order outside the matters raised by the parties.
The court also found a breach of fair procedures. The mother had no proper advance warning that the relocation proceedings could result in her losing primary care, and no fair opportunity to address that question. The judges said her answer to a hypothetical question about what she would do if relocation were refused should not have influenced a custody decision in proceedings that were not about custody.
The High Court had refused judicial review, finding, among other things, that the mother’s earlier lack of candour justified withholding discretionary relief. She had previously denied being in a relationship with a woman, later admitted the untruth and apologised. The Court of Appeal said the Circuit Court knew the true position by the time it made the order at issue, and the earlier false evidence had no bearing on that order. It therefore did not justify leaving an order made without jurisdiction in place.
The appeal was allowed. The judgment states that the order transferring primary care was to be quashed. The court’s decision addressed the legality and fairness of that order; it did not determine a new custody arrangement or decide the relocation application anew.