XX v XX: domestic abuse findings inform appeal on surname, non-molestation order and costs

In XX v XX [2025] EWHC 2756 (Fam), Mr Justice Peel considered a mother's appeal against aspects of a contested child arrangements order made by Recorder Moys. The case centred on whether serious findings of domestic abuse against the father warranted a change to the child's surname, an extension of protective orders, and a costs award in the mother's favour.

The original proceedings concerned D, a six-year-old girl whose parents had separated following allegations of serious abuse. The recorder's March 2025 order granted residence to the mother, restricted the father to indirect contact only, and imposed a section 91(14) restriction preventing further applications for two years. However, the recorder refused the mother's application to change D's surname from the father's to the mother's, declined to extend a Family Law Act non-molestation order, and made no order as to costs.

The mother's appeal focused on three grounds. First, she contended that the recorder minimised serious abuse findings and insufficiently weighted the negative impact on both mother and child of maintaining the father's surname. The argument advanced was that being bound to an abuser's name clearly contradicted D's welfare interests. Second, the mother submitted that the recorder should have extended the non-molestation order given the gravity of findings. Third, she argued that a costs order was warranted reflecting the father's litigation conduct and her success in establishing multiple findings.

The surname appeal

Mr Justice Peel refused permission to appeal the surname decision. The judgement emphasised that the recorder had conducted a careful welfare analysis, weighing multiple factors including D's settled identity, her positive feelings about her current name, the practical difficulties of change, and the likely confusion arising from any modification. The recorder had expressly considered the abuse findings but concluded they did not outweigh other welfare considerations, particularly given D's young age and established familiarity with her surname.

The appellate court noted that whilst the recorder departed from the Cafcass officer's recommendation, she clearly explained her reasoning and was entitled to reach a different conclusion based on the totality of evidence. The judgement rejected criticism that the recorder failed to consider a double-barrelled surname, noting this option had been addressed and rejected as potentially confusing, with concerns about the gradual erosion of the father's name over time.

Mr Justice Peel emphasised that such decisions represent quintessentially evaluative exercises by first instance judges who hear cases over multiple days. The judgement as a whole demonstrated clear, coherent and comprehensive analysis, and did not exceed reasonable bounds despite the challenging nature of balancing serious abuse findings against other welfare factors.

The non-molestation order

Permission to appeal was granted on this ground, with the substantive appeal succeeding. The court found the recorder's approach insufficiently protective. Material factors supporting an extension included the Crown Prosecution Service's decision to charge the father with breaching the existing injunction—a matter the recorder appeared to ignore—the gravity of proven findings against him, ongoing criminal investigations including rape allegations, and the Cafcass officer's recommendation which the recorder departed from without explanation.

Mr Justice Peel concluded that a Family Law Act order would provide both mother and child with enhanced security following proceedings' conclusion. The order was extended for two years until October 2027, though the ten-year period sought was deemed disproportionate.

Costs

The appeal on Children Act costs failed. The recorder's detailed evaluation of litigation conduct, applying principles from Re S (a Child) [2015] UKSC 20, fell within the reasonable exercise of judicial discretion. The recorder found the father had not weaponised litigation to perpetuate abuse and noted that proven sexual abuse allegations occupied less court time than unsuccessful controlling behaviour allegations.

However, having allowed the appeal on the non-molestation order, Mr Justice Peel awarded the mother £5,000 towards her Family Law Act costs, payable in instalments, reflecting the father's opposition to continuation at the final hearing.

This matter illustrates the appellate court's reluctance to interfere with evaluative welfare decisions whilst maintaining robust protection through injunctive relief where findings of serious abuse are established.