The Family Court at Newcastle refused a father permission to appeal an order that cut his time with two primary-school-age brothers to five days in each fortnight during term.
Key facts
- Who: Parents in child arrangements disputes, particularly where there is long-running conflict and an equal shared care arrangement
- From: 1 September 2026 (judgment date)
- Source: IAD and BNA (Children) (Appeal Against Child Arrangements Order), Re [2026] EWFC 259 (B)
In IAD and BNA (Children) (Appeal Against Child Arrangements Order), Re [2026] EWFC 259 (B), His Honour Judge Stephen Smith gave judgment in the Family Court at Newcastle upon Tyne on 1 September 2026, after hearings on 26 August and 1 September.
Background. On 14 July 2026 District Judge Gribble made a child arrangements order for two brothers of primary school age. It followed a contested final hearing and ended a shared care arrangement that had run, largely by agreement, for around six years. During the school term the boys were to spend five days in each fortnight with their father and nine with their mother.
The judgment records that the arrangement had been marked by conflict. The proceedings began in May 2025 over a disputed overseas holiday. A Cafcass report, a local authority report under section 37 of the Children Act 1989 and a children's guardian's report followed. The guardian advised that the 50-50 arrangement was not in the children's welfare interests and recommended the five/nine pattern, which District Judge Gribble adopted.
The question. The father sought permission to appeal on seven grounds. They included that District Judge Gribble found a lack of insight on his part without hearing his oral evidence, that she gave too little weight to one boy's wishes and his school's view, and that she did not assess each child separately. Permission may be given only if an appeal has a real prospect of success or there is some other compelling reason to hear it (Family Procedure Rules 2010, rule 30.3(7)).
The decision. HHJ Smith refused permission, saying the grounds were without merit. The order therefore remains in force, and the term-time arrangements must be implemented by the parties in due course.
The reasoning. HHJ Smith said the premise of many of the father's grounds was misplaced. He held that there is no principle that, absent misconduct by a parent, an equal shared care arrangement must be established or maintained. The court must carry out a welfare determination under the checklist in section 1 of the 1989 Act. Where conflict was entrenched and well documented, District Judge Gribble was entitled to find that something had to change, even without findings of misconduct.
On ground 1, HHJ Smith held that the decision not to hear oral evidence from either parent was a case management decision open to the district judge, who could rely on the professional reports. The "lack of insight" remark reflected the professional evidence. He read her later comment as being about the father's insight into the impact of the conflict on the children, and found it supported by the section 37 report.
What this means for parents
- In this case the court held that there is no principle requiring an equal shared care arrangement to be established or maintained where a parent has not been found to have behaved badly.
- Where conflict between parents is entrenched and well documented, a court may be entitled to change a long-standing arrangement even without findings of misconduct.
- An appeal court gives an evaluative decision of a first-instance judge an appropriate degree of deference, so an appeal needs to identify a flaw in the judge's treatment of the question.
- Permission is required to appeal a district judge's decision in proceedings under the Children Act 1989. If you are considering an appeal, get advice promptly.
Sources
- IAD and BNA (Children) (Appeal Against Child Arrangements Order), Re [2026] EWFC 259 (B), Family Court at Newcastle upon Tyne, 1 September 2026: https://caselaw.nationalarchives.gov.uk/ewfc/b/2026/259