England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(Mrs Justice Hogg)

		Royal Courts of Justice Strand London WC2 Thursday 13th September, 2001

1. LORD JUSTICE THORPE: Mr Powell, on behalf of I P, renews an application for permission to appeal that was refused by the trial judge, Hogg J, on 13th July and by me on paper on 1st August. Accordingly, Mr Powell is exercising the right to a renewed oral hearing. This hearing takes place without notice, although the local authority, being aware of its listing, have briefed Miss McNab to attend and she is here to observe the proceedings.
2. The trial conducted by Hogg J lasted for three weeks and culminated in her judgment of 29th June. The case centred on the many failings of the mother of three children, D G. Hogg J had made a care order in relation to the two older children in June 1998. The youngest child, P, was born on 19th October 1998 to a relationship between the mother and I P. At the outset of the trial the father supported the mother's case to have P's care. However, having heard the evidence of one of the mother's doctors he recognised that she was too deeply flawed and at the outset of the second week of the trial he changed his position and advanced himself as sole carer.
3. The judgment runs to some 58 pages. However, it is possible for the purposes of deciding this application to concentrate on that section of the judgment in which the judge weighed up the father's ultimate application to be considered as the sole carer. The judge introduced this passage by saying at the foot of page 35:

"In respect of P I found that the criteria under section 31 has been met. In the circumstances of this case I cannot countenance a return to her mother's care. However, the father and the grandmother each seek to care for P and I must consider their applications.

The father gave evidence to support his application to care for P. He put himself forward as a sole carer late in the day."

4. The judge then went on to consider that he had on a number of occasions been urged by professionals to consider advancing himself as sole carer and to some extent had accordingly been assessed as to his parenting capacity. There is no doubt that the professionals recognised that he had many strong points. He was certainly well able to take an active role in child care and he had a good relationship with P. One of the problems was his very strong attachment to the mother and his analysis that to accept the invitation of the professionals would amount to choosing between mother and child and rejecting mother in favour of child, something that he was not able to contemplate during any of the interlocutory stages. So one thing the judge had to consider was how profound was his separation from the mother, particularly emotionally, and how profound was his capacity to maintain that separation.
5. The judge also had to give due weight to the concerns expressed by the local authority and by the guardian ad litem. Both opposed the father's application. The judge reviewed the recent history and found within that history that the father had demonstrated what she described, at page 40 of her judgment, as:

"... a disregard for the mother, her well-being and that of the children. At best I question his judgment. I question his ability to prioritise the real needs of the family at home.

I am left with the feeling that, while he loves his daughter and enjoys playing with her and is able to show some parenting skills, that he has an inability to consider things in depth and understand other people's needs and make provision for them."

6. She also found at page 42, in two short passages which I cite, first:

"Moreover I have real doubts whether he could resist the mother were she to demand to see P. On his own evidence he does not accept or understand the concerns. He still believes that she should care for P and that she is an excellent mother."

7. Then, at the foot of the same paragraph:

"I have a real doubt whether the father has the capacity to emotionally parent a child."

8. It is the function of the trial judge to carry out a balanced analysis of what a potential carer has to offer. Manifestly the capacity to provide reliable physical care, to carry out the practical tasks, the capacity to relate to a child as a child are important elements, but they are by no means all the necessary elements to constitute an acceptable package. The judge was absolutely right to look at the case in the round and to consider his capacity to protect and his capacity to provide for the child emotionally. The judge's concerns were not only derived from the advice of the local authority and the guardian ad litem, but - and this is a very important feature of the case - they were derived from, and indeed fortified by, the father's own evidence. The judge said, at page 38 of her judgment:

"... I was deeply concerned about the general tenor, attitude, of his evidence.

The guardian told me she had concerns about his plan before he gave evidence but those concerns were increased by his evidence."

9. It is one of the most important functions of a trial judge to make an evaluation of a potential carer exposed through the forensic processes of examination-in-chief and cross-examination. If a judge receives the impression received by this trial judge, it would be almost an act of judicial irresponsibility to commit a child to the full-time sole care of the applicant. That is simply a hurdle which in my opinion this applicant cannot begin to overcome. It is the function of the trial judge to make that assessment. This court has no comparable opportunity, and for this court to impose some other order or solution in preference to that for which the trial judge opted would be completely unprincipled.
10. It is said by Mr Powell, who has said everything that could possibly be said for the applicant, that the judge erred in failing to order a psychological assessment by an expert, Mr Phillip Maggs, whom the father's team desired to instruct. But the judge dealt with that in an entirely proper manner. She recorded the guardian's position that such an assessment would entail delay and that such a delay would be unjustified in the light of the very slender prospects of any positive outcome from the assessment. The judge herself said, at page 43:

"I should only order an assessment of the father if I felt that there were prospects for a favourable outcome, namely, that P would be able to live with her father. To order an assessment would inevitably delay a final placement for P and without good prospects it would not be justified. I agree with the guardian for the reasons which she has given and my own reasons that an assessment would not be justified."

11. I find no misdirection in that passage. The judge was reaching a discretionary conclusion and it is not for this court to interfere with the discretionary determinations of the judge at trial absent some plain misdirection.
12. For all these reasons, I remain of the opinion that I expressed provisionally on paper on 1st August and this renewed application will be dismissed.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment)