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 FAMILY DIVISION
(Mr Justice Holman)

		Royal Courts of Justice Strand London WC2 Wednesday, 3rd July 2002

Wednesday, 3rd July 2002

1. LORD JUSTICE THORPE: This is a very sad case which has proved to be an exceptionally difficult one for determination in this court. The case concerns, in the main, the children born to TB (to whom I will hereafter refer as "the mother"). Her eldest child is hardly in our contemplation. She is D, and she is 20 years of age. Next came S (who is 16), then E (who is 11), followed by G (who is 10). Finally, there is M (who is three). This appeal is solely concerned with determining the future of M. The older children are not within the compass of the appeal, their future having been settled at the trial below, and no point is raised in relation to the judge's orders in respect of them. The other child who was within the group collectively disposed of by the judge is W (13 years of age), who is the child of a friend of the mother taken into the mother's family when orphaned. He is, therefore, an essential member of the family.
2. The mother's husband, V, died in 1993. Accordingly, she was a widow when meeting Mr C in 1995 on his release from what was effectively a life sentence for murder. Mr C had undergone a conversion to Christian faith during the course of his imprisonment, and he encountered the mother as fellow members of the congregation at a non-conformist church in north London. Their relationship blossomed and they married on 27th November 1996. There were concerns about the quality of care that the children were receiving in this newly constituted family, and in 1998 there was an orange book assessment conducted on paper, as I understand it, which led to negative result. Subsequently within these proceedings the children's guardian has criticised the local authority for their failure to do more to investigate and protect the children during this period.
3. In the year 2000 the mother conceived a second child of this, her second, marriage. Tragically, when four weeks pregnant, she suffered a brain haemorrhage. She was only kept alive for the sake of the child she was carrying, and the life support machine was turned off after the birth of a little boy, christened Samuel, on 24th June 2000. Samuel's life was brief. He never left hospital and subsequently died on 28th October. This obviously was a huge tragedy for all the family and, of course, for Mr C, who was left to care for this large family without the support of his wife. There were a number of mounting concerns as to the standard of care that the children were receiving and as to whether they required protection.
4. All this culminated in the issue of applications for recovery orders, interim care orders and emergency protection orders on 29th August. Those applications were all granted in the Inner London Family Proceedings Court on evidence of profound concerns held by the local authority (Camden) that the father had gone on the run with the children. The concerns of the local authority are understandable, but they were misconceived to the extent that the father had, in reality, only gone to stay with a friend taking the children, all pre-arranged, and that was misinterpreted either by neighbours or by the local authority. It also led to the draconian decision of the Home Office to revoke the father's licence. Accordingly, in these circumstances, the children were distributed and separated into temporary care before being reunited on 29th October 2000 in the home of Mr G, the mother's brother and so maternal uncle to most of the children. There were conventional orders for the development of the litigation. The local authority were applying for care or supervision orders. Mr G, as the case developed, sought residence orders and the children's guardian broadly supported the position of the local authority.
5. The children's guardian had instructed Dr Dora Black to deal with bereavement issues following the death of the mother. She made investigations and prepared a report roughly a year before the case came for final trial. Subsequently, the guardian instructed Dr Eia Asen to advise on welfare issues and future placements. The local authority instructed Dr Judith Freedman, as a consultant adult psychiatrist and psychotherapist, to investigate areas around the father's potential dangerousness and to advise upon his suitability to be a primary carer.
6. There was a meeting of experts on 11th November 2001. The experts were all in agreement that the status quo should be confirmed for the long term future: not only should the older children be confirmed in their placement with Mr G, the maternal uncle, but also M.
7. The case in relation to M was obviously a different case to that of the older children. To begin with, he was not an orphan. Then his own father was seeking his return to enable him to provide long-term natural parenting. Of course, he was much younger than the other family members. Finally, unlike them, he was of mixed race, being the child of a white father and of a black mother.
8. All these issues then came for hearing before Holman J in February 2002. Holman J conducted a trial over the course of eight days culminating in judgment on 15th February. Characteristically, Holman J conducted the trial with great conscientious care. He had an immovable commitment to go out on circuit, commencing on 18th February, and in order to complete the trial he was sitting long days almost throughout. As Mr Storey QC has told us, he was often sitting until 6.30 in the evening in order to ensure that the case could be completed before his departure.
9. In the end - and I concentrate only on the submissions in relation to M - the local authority's position was somewhat ambivalent. They were absolutely plain that they were entitled to public law orders on the basis that the section 31 threshold had undoubtedly been crossed in relation to all children at the date of issue of proceedings in August 2000. They were not, however, so clear as to the form of public law order. They were completely clear that M's future should be with Mr G, but they seem to have shifted between a submission that the placement should be supported by a supervision order and a submission that it should be supported by a care order. The position of M's guardian was constant throughout. Her submission was that the placement with the paternal uncle should be supported and strengthened by a full care order to the local authority. Mr G himself sought a residence order, and the father simply sought the return of his child.
10. The outcome in relation to M was preceded by the important conclusion that the local authority had failed to establish the crossing of the section 31 threshold in relation to M, although not in relation to the other children, as at the date of issue of proceedings. Accordingly, any question of public law orders simply fell away, and the judge was left with the determination of Mr G's application for a residence order. That application he dismissed. He proceeded on the basis that there would be harmonious collaboration between the father and the maternal uncle for the managed return of M to his father. He assumed that despite a clear history that there had been a sudden and unexplained breakdown in the relationship between the two men in March 2001. He made the assumption on the basis of assurances that were apparently given by counsel for each of them during the course of their final submissions.
11. It is now necessary to record briefly subsequent events.
12. Since the judge had made a family assistance order with a view to supporting the collaborative management, the local authority holding the family assistance order accordingly arranged a meeting between the two men. At that meeting nothing was said, apparently, as to the possibility of a challenge to the judge's order, but almost immediately after the meeting an application for permission was lodged with this court and a paper order was made for an oral hearing on notice. That hearing took place on 11th March and, at the end of the hearing, I granted permission and shortly explained my reasons for so doing.
13. At that stage the attack on the judge's order was comprehensive and challenged his conclusion that the section 31 threshold had not been crossed in relation to M. The local authority were represented at that hearing, as was the father by Mr Storey Q.C. who has consistently appeared for him throughout these proceedings. The children's guardian was not represented, although a letter had been received by this court shortly before the hearing in which the guardian expressed her support for Mr G's application.
14. Subsequently, because of the lack of consensus about the future of the father's role in M's life, he issued an application for a defined contact order. That led to the filing of statements, which revealed a dispute as to a proposed three-day staying contact visit. The father's proposal was that he would effectively board M out at three separate households on each of the three nights of the visit, a proposal that Mr G refused to accept and a proposal that has subsequently been criticised by the child's guardian. However, those sort of difficulties were overcome at the listing, again before Holman J, when an order was made for defined contact by consent. The order provides for a review before the same judge in September.
15. The position of the primary appellant, Mr G, within the appeal was revised radically when on 11th June he submitted amended grounds of appeal abandoning his attack on the judge's refusal to contemplate public law orders. I suppose that that is in a sense an understandable revision - after all, what Mr G essentially sought to establish was a residence order - and the importance for him of bringing the local authority into the future, either exercising care or supervision, was obviously questionable.
16. Most unfortunately, the child's guardian's preparation for the appeal was hugely delayed as a result of the indisposition of her solicitor, and it was only within the last week that Miss Cover was instructed. She had not appeared in the court below. She did not meet the guardian until two working days before this fixture, and her respondent's notice was not received until the eve of the fixture. To that respondent's notice she annexed, as her grounds of appeal, the revised grounds advanced by Mr Hughes Q.C. on behalf of Mr G. It seems that there was little time for reflection in the guardian's camp as to whether or not to appeal the judge's refusal of public law orders, and it is understandable that at such a late stage the guardian should have misgivings about going it alone.
17. The position of the local authority, I have to say, I find harder to understand. They had advanced their argument that the threshold had been crossed in respect of M, not only on the basis of a number of specifics which had been subsequently rejected by the judge at trial, but also on a fundamental submission that, on the expert evidence, the father's personality was so damaged as to render him unfit to exercise primary care. The judge had rejected that submission. It was obviously open to challenge, particularly once a permission had been given to the primary appellant that included that very challenge.
18. The local authority filed a skeleton argument which was only received by the court on 26th June, that is the middle of the week preceding trial. It simply said that the local authority was not seeking to appeal the order. They were of the view that M should be placed with the maternal uncle rather than the father, but that as the threshold criteria were found not to have been met, there was no order that the court would make in favour of the local authority. The skeleton then informed the court that there had been a change in social worker and that an updated statement would be available to the court "should it choose to admit it". Obviously if the local authority had any relevant information, this court would expect to receive a report.
19. It was only after the opening of the hearing in this court that the local authority tendered their statement. It is actually a statement from Mrs Spencer, who is the team manager, who has had consistent responsibility for this case and who gave evidence before the judge. The statement is full and runs to some 58 paragraphs. It is emphasised throughout that the local authority has not accepted any of the judge's findings or conclusions. In paragraph 14 it says that the concerns over the possible risk of sexually inappropriate behaviour towards M remain. It says that the reasons given by Holman J of the lack of risk to M did not, in its opinion, lessen the risk. It expresses grave concern that the judge had in his judgment made no reference to the experts' opinion that any return of M to his father should be preceded by professional assessment. In conclusion it says:

"The local authority position remains the same as it has throughout the course of the proceedings and subsequently, namely that Mr C could not safely or adequately parent his son and that M should remain with his maternal uncle."

20. So given that statement, how is it that the local authority is not an appellant in this court? Certainly we gave the local authority every opportunity to take a litigation position that reflected the concerns of the team manager. But Mr Clough was quite steadfast in retaining his position of neutrality. He pointed out, quite rightly, that it was legitimate for the legal department to take a different view to the social services department; and in the end it was for the legal department to determine the position of the local authority before this court.
21. Obviously the options for this court would have been fuller and perhaps more satisfactory had the judge's rejection of the local authority's case in relation to section 31 criteria been open to our review. But it has not, or certainly not directly. Accordingly, we have concentrated on Mr Hughes' appeal against the refusal of the residence order.
22. He has raised a number of arguments which are all expanded in a skeleton argument dated 25th June. He is supported in a helpful skeleton received from Miss Cover on 28th June, and the contrary case is put by Mr Storey in his skeleton of 24th June. Mr Hughes' argument criticises the judge in a number of respects. He criticises the judge for rejecting the united opinion of the experts in the case without any, or any adequate, explanation. He criticises the judge for having rejected their evidence as to the extent of the damage to the father's personality. He criticises the judge for having sanctioned a return of M to his father without any preliminary assessment. That was the fall-back position of the experts, and it simply receives no mention in the judgment.
23. Miss Cover for the guardian particularly attacks the judge's rejection of the evidence of the experts as to the father's personality and suggests that the judge may, perhaps unconsciously, have reached a conclusion which sought to redress the injustice done to the father during the interlocutory stages of the case, a redress which could not be achieved without the sacrifice of M's welfare.
24. Mr Storey has, of course, quite properly emphasised that the judge gave an enormous amount of care to the case. He heard from a variety of witnesses whose evidence is not before us in any transcribed form, he gave a judgment which, if compressed, was always clear, and he naturally emphasises that it was a judgment given under unusual pressure and it is not to be criticised if it fails to deal with every possible point.
25. In the end I have reached the conclusion, not without misgivings, that it is necessary for this court to intervene and to make the residence order that the judge refused. I will endeavour to explain, with some care, the criticisms of the judgment that would seem to me to have some validity, and I would also emphasise that we are contemplating a situation that is inevitably different to the situation contemplated by the judge in the early spring of the year. We are contemplating a position in which there has been a lack of the collaboration that the judge anticipated and a total lack of the progress that the judge expected towards managed transition.
26. I will first deal with the submission that the judge wrongly rejected the evidence of the experts as to the husband's core personality. In deference to the judge, it is necessary to first establish, with some care and perhaps at some length, what the expert evidence was before him.
27. I start with Dr Black, because she, of course, was the first to make any assessment of the father. Her oral evidence on the point was to this effect:

"... the kind of damage that was done to this man as a child takes an enormous amount of therapeutic work to reverse, if it can be healed, and in my opinion, based on my own interviews with him and from what I have read, is that he would continue to pose a risk to children in terms of his parenting ability as a result of his early experiences, and that this report rather confirms that belief."

(I add that the report to which she there referred was a report made by Dr Reeves within the criminal justice system.)

28. The evidence of Dr Freedman is perhaps of the greatest importance, because she was brought into the case as a specialist in adult, rather than child, psychiatry. In her report of February 2001, in relation to her interviews and on the subject of whether, in the light of the father's deprived childhood experiences, he was able to offer appropriate parenting, including physical care, emotional care and an ability to meet the children's emotional needs and developments, she said this:

"It is not surprising that someone who has experienced the serious degree of trauma that we know Mr C experienced might develop an inconsistent sense of himself. This would be in keeping with the confused thinking that I noticed. However, it seems to me likely that the particular way that Mr C has dealt with the trauma of his early life is by erecting a kind of false identity. I do not mean by this that it is knowingly contrived, but rather that he unconsciously projects a view of himself as he would wish to be, regardless of the fact that he may not have the necessary underlying capacities to sustain it."

29. Over the page she said:

"I next have to consider how these aspects of his personality might affect his parenting abilities. On the one hand, it is a central part of his new identity to be concerned and caring for the children. On the other hand, I think that he is particularly vulnerable when he misses a sense of being loved in his own right, which might make it difficult for him to sustain himself in the rigours of parenting..."

30. She wrote again following a meeting with the father shortly before trial on 8th January 2002. She said on page 122:

"Given these difficulties, I turn now to my current assessment of Mr C. I think that it is concerning that he has not managed to make a stable life for himself since his release from prison."

31. She then particularised that on the following page, saying:

"... he has not managed to restart his business in an effective way."

32. She continued:

"When he came for his interview with me, he looked dishevelled. He seemed rushed and pressured, which I have felt are danger signs for him with regard to his emotional stability. In addition, I was concerned that he seemed most preoccupied with his conflict with Mr G."

33. She went on as follows:

"On this basis, I think that Mr C remains in an unsettled state in his life. So long as this is the case, I do not think he can safely look after any of the children. The Social Worker, the Children's Guardian, Dr Black and Dr Asen have felt in the past that none of the older children wish to live with Mr C and that it was in M's best interest to remain with his siblings. If this continues to be the opinion expressed by the other professionals about the best interests of the children, then that should determine where the children remain. If the other professionals think that this situation has shifted, particularly with regard to M, then I think that it would be necessary first to see if Mr C can achieve a better degree of personal stability."

34. In her oral evidence she was asked about this seeming deference to the views of the other professionals, and she said at page 194:

"... I knew that Dr. Asen was going back to complete his assessment and I did not have that yet. But, based on what I had already heard from them, I had good reason to think that they would be likely to stick with their recommendation that M should remain with his siblings. They are the child experts, and I felt that I had to defer to their view of what was in M's best interest."

35. But it is to be noted that even in deferring to their view, she was saying that any move would necessarily be preceded by a review as to whether Mr C could achieve a better degree of personal stability.
36. At page 197, when questioned on the hypothesis that the child experts might consider M's return, she said:

"I would certainly think that Mr C should have very serious consideration of his ability to offer a home for M, but I am concerned about his emotional stability, and I think that is quite a serious concern."

37. Then I come to the evidence of Dr Asen. In his written report at page 111 he had said:

"As far as M's future welfare is concerned, it is my view that his needs would best be met if he continued to live with his siblings and Mr G and his family. This recommendation is based on a careful evaluation of the various risk factors, as outlined under 4.8 above. It is my view that in the event that M is placed with his father he would be likely to suffer significant harm."

38. I only add that the factors dealt with by Dr Asen in paragraph 4.8 included his recognition of the father's personality defects.
39. In his oral evidence Dr Asen, at page 172 at the foot at the page, was asked the question by Mr Storey:

"Assuming help available on all three fronts that you have identified as necessary, is it possible for you to give any realistic estimate of Mr C's chances of being able to parent M successfully?"

40. This is the important answer:

"It is my view that for the number of reasons, including Mr C's personality factors, it is unlikely that he would genuinely wish to seek out the sorts of support/help that I have outlined, and I therefore think that the chances of him to successfully parent M as the primary carer are small."

41. Finally, I refer to the report of Mrs S, M's guardian, who had said in her written report to the court at paragraph 126:

"The expert evidence, from Dr Black's initial reservations to the final assessment of Dr Freedman and Dr Asen's assessments, is that Mr C is not a suitable person to care for a child, and my own experience of him causes to me support that view."

42. In her conclusions she said at 173:

"In dealing with Mr C in section VIII above, I have indicated how Dr Black, Dr Freedman and Dr Asen are in overall agreement about Mr C's unsuitability as a carer for children, and how this rests on basic aspects of his personality, not on specifics that could be dealt with by assisting him to learn better parenting.

...

For these reasons, I believe and submit that the children would be at risk of significant harm if they were to be returned to the care of Mr C."

43. All this evidence was, of course, relied upon by the local authority and by the guardian as a crossing of the section 31 threshold. That was recognised by the judge at page 35 of his judgment when he recorded the evidence of the experts and the submission and said:

"If that is right, then it can be seen from the perspective of today that his personality and parenting capabilities were so deficient that to leave M with him exposed M to the likelihood of significant harm."

44. Accordingly, the judge went on to consider, under a distinct subheading "The Personality and Capabilities of the Father", the evidence and submissions advanced. This makes up seven full pages of his judgment. He correctly cited the evidence of Dr Black to which I have already referred. However, in his citations from the evidence of Dr Asen, he seems to me to focus more on attachment considerations - that is, M's attachments to Mr G - rather than on personality disabilities. Furthermore, in his citations from Dr Freedman's first report he seems to omit her clinical assessment of the father's emotionally unstable core. He does, however, centre on the passage in her second report which I have cited. But he rejects it on his differing assessment of the father's performance on practical levels since his release from prison. In that he was plainly justified. But he went on also to reject her assessment of the father's emotional instability by relying on his own assessment of the father in the witness box. He said at page 41, line 14:

"I myself have seen the father at length, both in the courtroom throughout the hearing and during the course of his long day in the witness box. Whilst paying full weight to the assessments and opinions of the experts, I am entitled to, and indeed must, make my own assessment too. I found him to have considerable intelligence and to be thoughtful in his answers. He was not shown by cross-examination to have been untruthful or unreliable on any significant issue of fact, although I am well aware that there are numerous points, for example as to whether he was `on the game' or a `rent boy' in the early/mid-1980s, on which his answers are in conflict with statements in contemporary documents."

45. I interpolate that there are a number of aspects of the history which are of relevance but which are perhaps not as extensively settled by this judgment as might have been the case had the judge had more time to give to preparation: for instance, had he been in position to write a judgment for subsequent hand down. The judge also said this of the father on the following page (and this is an important passage):

"Although he has charm, the father did not seem to me to display much warmth at times when one might have expected it, and there was a marked lack of emotion and affect when describing past events. He seemed to me to be a man very much in control of himself and his emotions, which perhaps is to be expected after half a lifetime spent in children's homes and in custody and in prison."

46. Of course the assessment of the father's credibility was primarily the judge's task. But the assessment of his core personality and the extent to which damage resulting from his early life experiences was disabling and permanent was primarily for the experts, whose professional training, qualification and clinical expertise equipped them for the task. In my judgment, given that the experts were unanimous on this vital aspect, it was not open to the judge to reject their conclusions, either on the basis of his own impressions of the father or upon the basis of the prejudice to the father's case caused by management decisions of the local authority and prison authority during the interlocutory stages. The assessment of the section 31 threshold could not admit of any redress to the father for that factor, nor could the assessment of considerations relevant to M's welfare.
47. I turn now to consider the second submission that the judge in explaining his rejection of the expert evidence on welfare and placement really gave no reasons, or no adequate reasons, for departure. The judge approaches this question under the sub-heading "Private Law Application of Mr G". He begins by recognising that as between Mr G and Mr C there could be no doubt that Mr G is the more capable and the more experienced parent. But he goes on to consider the important fact that Mr C is a parent and Mr G is not.
48. The judge summarises all of the authorities on this point and ends with a clear direction which I think is above criticism. He said:

"In my view, I should adopt the following test and approach. M should be returned (in a managed way) to, and permitted to be brought up by, his own father unless his welfare now and in the longer term requires that he remains with Mr G. In so formulating it, I give to the word `requires' its proper force, and regard it as synonymous with the word `necessary' where that appears in Article 8(2) of the European Convention on Human Rights.

So stated, the test does make welfare paramount (as section 1 of the Children Act and indeed the English and Strasbourg jurisprudence all require), but it does not make the issue one of a mere balancing exercise."

49. The conclusion appears almost immediately afterwards, with only an intervening paragraph of explanation. The conclusion is at page 47:

"I am unable to conclude that the point has been reached whereby M's welfare now requires that he remains where he is."

50. So it is to the intervening single paragraph that we must go for explanation. I read it in full:

"I am very, very conscious of the views of all the psychiatrists, of the social workers and of the guardian, but I have come to the firm view that it is not yet impossible to transfer M's attachments without lasting harm to him. He is not quite three, he knows his father well, he regards him as his father, calling him `Dad'. He relates well with him when they are together. Change can be managed, and it is the fact that children with histories as unsettled, and losses as great, as those that M has suffered can and do move on from foster homes in which they are well attached to new homes at the age of M and older."

51. But the opinion of the experts was not confined to attachment issues and the short-term management of change. They were, of course, focusing on the virtues of Mr G and on M's consequential attachments and on the value of half-sibling attachments in Mr G's homes. Of course they pointed to the problems of moving an attached three-year old to an inexperienced single parent whose practical arrangements were still unsettled. But the prior and more fundamental foundation for their shared opinion was their rejection of the father's capacity to care for his son safely, competently and consistently over years. The risks were not the risks of upset caused by the move. The risks were not risks that could be minimised by good management and collaboration. They were the risks inherent in committing a particularly vulnerable child to the sole care of a parent with untreated emotional and psychological instability and a personality permanently damaged by earlier life experiences.
52. I next turn briefly to the role of the child's guardian. Miss Cover points out that the guardian's report at C24 records her exceptional involvement with M, whom she represented. She records under the subheading "M" the number of occasions on which she met him, and in addition to all those many occasions Miss Cover adds yet another on 11th January. So there can be no doubt of the profundity of her involvement. Nor can there be any doubt of the strength of her opinion in the various passages that I have already cited. All that was amplified by her oral evidence. But it was not dealt with by the judge beyond the passing references that I have already cited at pages 35 and 46 of the judgment.
53. Finally, I say a word about the submissions as to the margin extended to the trial judge in departing from the opinion of experts.
54. Miss Cover specifically relies on the decision of this court in the case of Re B (Split Hearing) [2001] FLR 334, where the leading judgment was given by the President. It is from her judgment that citations generally come. However, Miss Cover relies on a passage in the judgment of Otton LJ in which he said at page 341:

"Accordingly, in my view, the judge was not entitled to reject the uncontradicted medical findings and opinion and to conclude that this opinion was either unreasonable or irresponsible."

55. She then relies upon Otton LJ's citation from the earlier judgment of Henry LJ in Flannery and Another v Halifax Estate Agencies Limited [2000] 1 WLR 377. The passage at page 381 that she particularly relies upon is paragraph (3) of Henry LJ's general comments, where he said:

"The extent of the duty, or rather the reach of what is required to fulfil it, depends on the subject matter. Where there is a straightforward factual dispute whose resolution depends simply on which witness is telling the truth about events which he claims to recall, is likely to be enough for the judge (having, no doubt, summarised the evidence) to indicate simply that he believes X rather than Y; indeed there may be nothing else to say. But where the dispute involves something in the nature of an intellectual challenge, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation where as here there is disputed expert evidence; but it is not necessarily limited to such cases."

56. Despite the intelligible nature of the submission, I find it unpersuasive. It is quite clear to me that these observations are directed to expert evidence of a much more specific character, particularly evidence of medical experts as to physical injuries sustained by children. It seems to me that in a case where the judge is evaluating the opinion, perhaps the conflicting opinion, of experts as to placement, management and welfare issues, the surer guide is to be found in another judgment of the President, when a Lady Justice of this court, in another case of Re B cited by Mr Hughes and reported at [1996] 1 FLR 667. The passage in the judgment appears at 674, when Butler-Sloss LJ said this:

"Family judges deal with increasingly difficult child cases and are much assisted in their decision-making process by professionals from other disciplines: medical, wider mental health and social work among others. The courts pay particular attention to the valuable contribution from paediatricians and child psychiatrists as well as others, but it is important to remember that the decision is that of the judge and not of the professional expert. Judges are well accustomed to assessing the conflicting evidence of experts."

57. So, in the end, it seems to me that on the application of those principles to this case the judge was at liberty to depart from the opinion of the experts, even if unanimous, on issues of future placement and management and perhaps even on attachment, balancing risks as against advantages. But in this instance I am of the clear opinion that the expert evidence in the assessment of the father's damaged core personality and continuing emotional and psychological instability was not evidence open to the judge to reject simply on the basis of impressions which he had formed of the father, not as to his truth, but as to his core, from witness box exposure. Furthermore, insofar as the judge was fully entitled to depart from the experts in relation to issues of management, placement and welfare, it was incumbent upon him to explain his departure a good deal more fully than he did in the single paragraph I have cited.
58. Finally, there is a concern in my mind as to the judge's rejection of the fall-back position of all the experts that any move, or any contemplation of a move, to the father required to be preceded by a residential assessment. That was a serious point and one that simply is not referred to by the judge in his decision to move straight into a managed transition which he believed would be supported by harmonious collaboration.
59. Finally, reference must be made to subsequent events. The present position is one of drift. There seems to be no clear direction, nor any clear force, moving the life of this child on. I have already referred to the subsequent proceedings in the court in relation to contact. That simply leaves a position unresolved with judicial review in the autumn.
60. I end by making two points, both of which I think are important. The first is to acknowledge fully that this was a decision of a very experienced judge. He conducted a difficult trial with conscientious care. He composed a judgment under very great pressure. He gave impeccable directions as to the law, and absence of explanation for rejection of points of detail or absence of findings of fact on the periphery of the case would easily be explained by his desire to pronounce a judgment before his departure on circuit. But I have reached the reluctant conclusion that the judgment is flawed, for the reasons that I have explained, and primarily that it is based on an impermissible assessment of the father's personality and emotional and psychological instability.
61. The second and final point that I want to make is that a residence order to Mr G must clearly be secured by an order for contact to the father, which, in the contemplation of all, will be an order that expands as the opportunities for expanding the relationship between father and child occur. Obviously, this is within the safe control of Holman J. Obviously there are current uncertainties about the father's personal life. It seems that he may have a new partner. That has not been explored. There are still question marks about his secure housing. But setting aside those practical considerations, the importance of the relationship between M and his father is manifest and must be recognised by all, including Mr G, and must be diminished by no-one, including Mr G. I have no doubt that Holman J will be as alert to that consideration as I am in this court.
62. But for all those reasons, perhaps over long in statement, I would allow this appeal.
63. LORD JUSTICE ROBERT WALKER: I agree. I add a few observations of my own only because we are differing from a very experienced family judge on a matter which has caused great anxiety to all those involved in it.
64. The judge's judgment shows that he brought to this case not only his intellectual powers but also a real sympathy and concern for individuals who have had to cope with far more than their fair share of trauma and tragedy. If I may respectfully say so, the judge's humanity shines through his judgment. But I cannot avoid the conclusion that the judge was in the end over-influenced by his wholly understandable sympathy and concern for the father and that this led him to give too little weight to the clearly-expressed and virtually unanimous views of the child's guardian and the three eminent expert witnesses.
65. Moreover the judge gave no real explanation of why his conclusion appeared so inconsistent with the views of the guardian and the experts. Whatever difficulties he had in preparing and giving his judgment (and I do not in any way underrate those), this was a very serious defect in his judgment. It was not sufficient for the judge simply to say or imply that he took account of the views of the guardian and the experts but that he took a different view. Even the most experienced and insightful family judge does not have the specialised training and skills of consultant psychiatrists and paediatricians who spend their lives working with damaged adults and children. Discourse between a judge and a witness in the course of a contentious hearing is very different from that which can take place in a consulting room.
66. I agree with Thorpe LJ that it is very important that the father should have regular, well managed and (I hope) expanding contact with his son. That has been agreed on an interim basis and it is to be reviewed by the judge in September. It would be unrealistic to think that contact may not cause conflict and stress, at least at first. But it is most important, in this child's interests, that contact should continue and that conflict and stress should be minimised.
67. LADY JUSTICE ARDEN: I agree with the judgments of Thorpe and Robert Walker LJJ. I too would like to add some short observations.
68. The judge, who is a very experienced judge, was faced with a most difficult case, and he discharged the weighty responsibility placed on him with great conscientiousness. The difficulties facing the judge were aggravated by the large quantity of evidence. Moreover, the judge clearly thought that there would be cooperation in the process of change if M were to live with his father, and that this process could be managed. Unfortunately that has not come about.
69. The unique circumstances of this case have been described by Thorpe LJ. They posed a dilemma as to what was in the best interests of M. We have had the benefit of considering the judgment. It is clear that the judge directed himself correctly in law. However, the principal issue is whether the judge fundamentally misunderstood the effect of the expert evidence, particularly that given by Dr Freedman as to the father's emotional stability. For my own part, I think the judge fell into error in treating that evidence as covering the same ground as his own assessment of the father's credibility as a witness.
70. There are some other short points that I would like to make. First, counsel challenged the adequacy of the judge's reasons in relation to the way in which he dealt with the allegations made by S and in relation to the way in which the judge dealt with the father's prior involvement in prostitution in the 1980s. As regards the former matter, the position was that the judge made a finding, after hearing evidence, that the allegations made by S collectively amounted to "inappropriate lack of respect by the father for S and her sexuality and individuality". The judge was able to discount that conclusion in making the order he did but in so doing did not explain why he had done so. Likewise, as regards the latter matter, being the father's adolescent conduct, the judge simply said, in relation to his finding that the father had not been shown by cross-examination to have been an untruthful or unreliable witness on any significant issue of fact, that he was well aware that there were numerous points, for example as to whether he was "on the game" or a "rent boy" in the early or mid 1980s, on which his answers are in conflict with contemporary documents. As I understand it, those documents contain statements by, or based on, information provided by the father himself. So the judge did not consider it important to make findings on those issues and did not make those findings.
71. In my judgment, considering the effect of the judgment overall, the judge could not properly come to the conclusions that he could discount S's allegations or that he need not make the findings to which I have referred without explaining how he had arrived at those conclusions. Of course, this was only a "reasons" challenge, and it may be that those matters in themselves would not have led to the allowing of this appeal if there had not been the other much more substantial point to which I have referred.
72. Second, as Thorpe LJ has pointed out, there was no reasoned rejection of the guardian's evidence. Mr Paul Storey QC submits that the guardian's report was largely based on expert evidence given by others. The report, as Thorpe LJ has explained, was also based on the guardian's considerable experience. Accordingly, in my judgment, it was necessary for the judge to explain why he was rejecting the guardian's views.
73. Third, the judge failed to consider certain basic practical problems if there was to be any change in where M lived. For instance - and this is only one point of several - the father's current accommodation was inappropriate for M. In my judgment the court should have considered whether the matter should be adjourned so as to obtain proper evidence as to how the transition would be managed. I have explained that the judge was given assurances as to cooperation, but there was already reason to doubt that the relationship between the father and M's uncle was such as to enable the transition to take place in a structured way.
74. Accordingly, in my judgment the appeal must be allowed and the order which Thorpe LJ proposes made.
75. However, I am in agreement with the judge on one matter, which I wish to mention. The judge made the finding that M knows his father well, regards his father as his father, calls him "Dad" and relates well to him. These are clear findings. Although the father will be very disappointed by the outcome of this appeal, he should recall that it is important for M's well-being, as Thorpe LJ has stressed, that he maintains his relationship with his father. He is now three and a quarter years old. This is a very impressionable age. The question of contact is of course not before this court and will be a question to be dealt with by the judge. However, the father must not be discouraged by the outcome of this appeal from maintaining his relationship with M in an appropriate way. It is a very important matter and, as the father is not in court, I am sure that counsel who has so ably defended his appeal on his behalf will explain that matter to him.
Order: Appeal allowed. Public funding assessment of the Appellant's costs.