England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WORCESTER COUNTY COURT
(Mrs Recorder Wilson)

		Royal Courts of Justice Strand London WC2 Tuesday, 23rd July 2002

1. LORD JUSTICE THORPE: This is a sad case, to which there can be no good outcome. The first family with which we are concerned is the Ms, comprising mother and father plus two children of the mother's first marriage. The second family consists of the mother's first husband and the lady with whom he cohabits and who in due course he intends to marry. She has two children by her first marriage. Her two children are a little older than the children with whom we are concerned in this appeal.
2. The mother and father married on 13th February 1993 and their two children were born on 23rd August 1993 and 25th October 1995. They are respectively a boy and a girl, B and R. The separation of the parents took place on 23rd January 1998, when the mother left the final matrimonial home with these two children. She almost immediately commenced cohabitation with her present husband, Mr M.
3. There was a ripple in February following the separation, when, on the 8th, the father retained the children after a contact visit until, by court intervention, towards the end of the month the children returned to their mother. In due course, by consent, a residence order was made in her favour with reasonable contact to the father.
4. Since then it is sad to relate that there have been endless problems over contact. There have been many hearings, both in the original court in the West Country and then in the Worcester County Court where the proceedings settled, the Ms and the two children living in the West Midlands. There has been a certain amount of endeavour to bridge the distance between the two households. The father has principally been centred in Cornwall. The Ms have tried a move there, which did not last; and equally the father and his new family have tried a move to the Midlands. Now, however, there is the complicating factor of a considerable distance of separation between the two households.
5. It is not necessary for the purposes of this judgment to record the long history of applications and orders which have been made from time to time in an endeavour to establish normal arrangements for contact. It is sufficient to record the principal events after an agreement was reached that contact should be tried at the home of Mr and Mrs H, who are the parents of the lady with whom the father lives. That first trial took place on 25th February 2001. The endeavour does not seem to have gone particularly well. The second attempt at the end of March went little better. As so often happens in these cases, the pre-arranged plans were frustrated by accident and breakdown, leading to exaggerated reaction and mistrust.
6. The outcome was a day visit on 1st April 2001, during the course of which there was a pretty violent flair up between B and his father. What happened is, of course, the subject of dispute. The father's version is that B was quite out of control and was kicking at him. Accordingly, he grabbed him by the wrists to try to instil some sort of calm into the storm, ending up on his knees in front of the squalling child, both of them in tears. B's version is that he was assaulted by his father; that he was hit across his left temple and kicked in the back. This account of physical abuse he brought with him at the end of the contact session.
7. Mother's reaction was to take him on the following day to the surgery, where he was seen by Dr Goodman. Dr Goodman is a senior member of the partnership but not one who had, according to the records, previously seen much, if anything, of B. Dr Goodman recorded some relatively superficial injuries: a mark to the temple; bruising to the forearm; scratches on the shins - nothing in the area of the back. There followed a few days later a memorandum interview conducted by a police officer with a social worker in attendance.
8. From there the proceedings in the County Court moved into a more adversarial mode. The father applied on 17th April for a residence order. The mother applied a month later for the discharge of the contact order. It seems that there were various necessary preparatory stages and towards the end of the year a judge of the court adjourned the hearing over to February 2002, refusing an application for B to be separately represented.
9. As so often happens in this sort of dispute, at the beginning of the year B apparently made an allegation against his father which was regarded as an allegation of sexual abuse. That allegation was properly investigated by the local authority. A report to the children and family reporter from the duty social worker of 7th February 2002 recorded the outcome of the memorandum interview. I quote from the letter:

"In the interview [B] said in a sort of fashion, that whilst he was in the bathroom some four years ago, his father came in, touched his penis and left. [B] gave a lot of `I can't remember'; his story lacked clarity and was very basic with no detail, emotion or consistency. What [B] described does not appear realistic."

10. She concluded:

"[The detective constable] and myself ... felt that [B] was not telling the truth. It is not known why [B] would be dishonest about such a matter, but in my opinion it needs questioning as to whether somebody either consciously or unconsciously empowered him with this information."

11. With the brewing contested proceedings in the court, there is a pretty obvious hypothesis as to how this seeming allegation, hardly properly categorised as sexual abuse, came to the surface.
12. The final hearing scheduled for 18th February 2002 was not effective. The court ordered a further report from a consultant child psychiatrist, a Dr Knowles, who had already reported. However, it seems that that specialist was on extended sick leave. Accordingly, on 11th April directions were given for another child psychiatrist, Dr Newth, to file a report. Her instructions were specific: she was asked, by the court's direction, to report on (1) the likely effect upon B and R that a change of residence would have in both the short and the long term; (2) how any such change of residence might be managed; and (3) in the event of a change of residence, the issue of contact between the children and their mother.
13. The report was available only on the eve of the fixture for 27th May 2002, which had a time estimate of four days. The case was listed before a recorder of the court, which was not a happy arrangement given the difficulty of the case and given that the father had particularly applied for the trial to be conducted by a circuit judge rather than a recorder, an application which was refused on 9th May. I know not what the listing difficulties in the court were; it may be that a recorder was inevitable. But it is important in cases of this sort that the parties should have complete confidence in the tribunal.
14. In the event, it is the mother rather than the father who comes to this court with numerous complaints of the judgment of Recorder Wilson, given at the end of the trial on the fourth day, 30th May. The judgment was given in the afternoon, submissions having been made in the morning. The evidence had concluded the previous day. So although this was not in any sense a reserved judgment, at least the recorder had something over two hours in which to put her thoughts in order. Her judgment was to the effect that the father's fundamental application for a shift of residence succeeded and that there should be a more or less immediate transition of both B and R from mother to father.
15. It seems that the recorder was not available on the following day. She had other commitments. Accordingly, she left the parties to endeavour to agree some sort of mode of transition with the aid of the children and family reporter. The prospects of that cannot have been good, given that the first reaction of the mother's counsel was to seek a stay and permission to appeal.
16. So on the following morning, there being no agreement between the parties, the issue of the mechanics was put before His Honour Judge Morris. He did all that he could do in the circumstances: he looked to the judgment of the recorder, which was to the effect that transition should be more or less immediate, and gave that expression in an order that the children should be taken to the offices of CAFCASS on the following morning, Saturday, and that they should be collected there by their father and removed to Cornwall.
17. The mother appeared before this court later that very day and successfully obtained an order staying the transition and putting the question of permission over to a further hearing in the following week. So it was that on 13th June, after an oral hearing, this court granted permission.
18. The appeal has been argued for the mother by Mrs Pittaway, who did not appear below, and for the father by Mr Tolson QC, who did appear at the trial. We have no less than three hefty ring binders. Within the first are the documents generated by the appeal process, together with some of the documents in the court of trial. The next contains the remainder of the trial bundle and the third contains the transcripts of all that transpired in the court. Inevitably there has to be some compression in order to complete an appeal within the allocated time limit of one day. Accordingly, submissions and indeed this judgment focus on three principal issues. The first is the recorder's finding that B had not been assaulted by his father on 1st April. The second issue surrounds the report of Dr Newth and the recorder's references to it. The third issue relates to her management of the evidence of Dr Goodman.
19. The recorder heard not only the evidence of the father, but also the evidence of Ms H and one of her parents as to what had happened on 1st April 2001. She was impressed by their evidence and that was the basis of her finding that there had been no assault upon B during the course of that visit.
20. But the other side of the story was available to her in the form of the memorandum interview. It is necessary to record the circumstances in some little detail. It is not entirely clear what did happen, but it seems that before the recorder sat she was furnished with a video, erroneously, that had absolutely nothing to do with the case at all. She attempted to view it, discovered its irrelevance and accordingly made it plain that she had discarded it. That fact emerges from a note that the recorder added to the transcript when asked to approve her judgment. The notes reads as follows:

"For the avoidance of doubt a video had been sent to me with the papers. I had a look at it but it contained scenes of what looked like a police stake out. I returned it on the first day of the trial."

21. That is, in a sense, of little or no relevance, save that there is an obvious possibility of confusion between that mistakenly furnished video and the highly relevant video recording B's account of the visit of 1st April.
22. Mrs Pittaway tells us, on instructions, (and I do not think that this is in any dispute between counsel) that after the close of evidence Miss Seddon, who was appearing in the court below for the mother, handed in the relevant video and invited the recorder to view it, which she agreed to do. Subsequently it was returned to Miss Seddon at the end of the case. That is indeed confirmed by the transcript, the last words being the recorder's:

"I return the diaries, and I've returned the video."

23. Accordingly, it was assumed that the recorder had viewed the memorandum interview. But when she gave her extempore judgment she said this at p.13:

"This is probably an appropriate time to deal with the allegation of sexual abuse. [B] is video interviewed and I have seen the video and have read the transcript. The mother is watching. At that time the mother does not then believe the allegations that [B] is making. The police have doubts. Dr Goodman quizzed [B] about this. Dr Goodman's view was that it was not typical sexual abuse, although he supposed it was. He did not take it seriously. The sexual abuse is denied by the father."

24. That created the ground of appeal that the recorder had fallen into obvious error, because there was no video or transcript of the video relating to the allegation of sexual abuse. There was only the video and the transcript of the video relating to the physical abuse. Of course, the response to that was likely to be that it was just a slip of the tongue; the recorder had simply transposed what she had seen in the context of physical abuse to sexual abuse. But when the transcript was submitted to the recorder to approve she only made one alteration to the transcribed text. That was to insert into the phrase "... I have seen the video and have read the transcript" the word "not", so that the phrase reads, "... I have not seen the video and have read the transcript."
25. That, of course, fortified Mrs Pittaway's submission. Obviously she submits that the recorder has fallen into a state of complete confusion as to what she has done and has not done. The only thing that is clear now is that she has not seen the all-important video, which is the most important record from the complainant of the incident of 1st April. That complaint Mr Tolson has endeavoured to answer as best he can, but obviously his position is materially weakened by the alteration that the recorder has made to the transcript.
26. As far as this court is concerned, it seems to me that we must proceed on the basis that the probability is that the recorder did not watch the interview. If she did watch the video, she has certainly failed to put it into its proper context or to afford it the weight that it manifestly deserves. We have taken the opportunity of watching the video at length and it undoubtedly bears out Mrs Pittaway's submission that there is a striking change in the attitude and movements of B as soon as the detective constable moves from general settling chat to asking him what he remembers of what was then a most recent experience. All the boy's reaction is entirely consistent with considerable disturbance and distress at the recollection. It does seem to me that it was vital for the recorder to focus on that crucial piece of evidence. For it was the child's account; not of course given within the proceedings, but nonetheless the child's account, given at or close to the time, to a police officer with obvious special skills in questioning a child in a sensitive area.
27. It would have been important too, if this case was going to be conducted with the profundity that it required, that Dr Newth had the opportunity of seeing that video and advising the recorder as to what interpretation to place not only upon the words of the child but also upon the child's demeanour. No doubt because of her late instruction, Dr Newth received only a transcript of B's words and had not seen the video itself. But at a very fundamental level it seems to me that any finding by the court reached without even seeing the available account of the complainant must be fatally flawed. In effect, the recorder had only heard one side of the story.
28. I turn now to the very important question of whether the recorder sufficiently reflected the evidence of Dr Newth in her considerations and whether she gave sufficient explanation for departing from Dr Newth's advice. Since this is at the very heart of the appeal, it is necessary to record in a little detail what it was that Dr Newth advised. She had in her written report dealt in a sensible way with the allegations that B had raised at the beginning of the year. She throughout her report reflected the instructions that she had received and addressed the question as to the likely effect of change of residence on B and R in the short and long term. She had said:

"In the short term I would anticipate that they would be very distressed at the thought of changing residence. It would involve considerable disruption to their lives. They are currently happily settled where they live and do a number of activities which they enjoy. There are no concerns that they are not being looked after properly by their parents and I cannot see that such a move would be explicable to them. They would be homesick and unhappy. They would need a lot of reassurance that they would be able to have contact with their mother."

29. She then dealt with the longer term, acknowledging that there would be a chance that they might develop a new relationship with their father. But she continued:

"However I would anticipate that he would have to overcome considerable hostility from [B] in particular and to a lesser extent [R]. The children might become more clingy and it might affect their confidence in adults in general. The upset might affect their performance at school as distressed children can find it hard to concentrate on lessons.

There is also a risk that they would be angry with their mother if they found that their father was different from how he has been portrayed. This might affect their relationship with their mother."

30. On the important issue of how might such a change of residence be managed, she said:

"It is very difficult to see how such a move could take place without them being caused extreme distress."

31. Later, she said:

"No thought seems to have been given as to how to physically remove the children from the care of their mother, a situation which is likely to be traumatic for all concerned."

32. Later in her report she said, weighing the overall balance:

"The benefits of a move are at present hypothetical and if the move goes badly and the situation breaks down then much more damage could be caused.

I am concerned that having a change of residence with contact with mother would leave the children still in a stressful situation with confusion of loyalties and that they would have to undergo all the stress of a move without any particular benefit at the end of it.

I am also concerned about the effect on [B] in particular of disregarding his expressed wishes and what this will do to his trust of adults in general. The children do not have separate advocates to represent their views and are unable to express them to the court."

33. These themes were repeated in her oral evidence. She dealt at some length, between pp.5-11 of the transcript, with the assumptions that she was making in approaching her task. She made it quite plain that she was keeping an open mind as to whether the allegations raised by B were true or not. She then reiterated, at various points between pp.13-20 of the transcript, that B was angry and particularly that he felt that he was simply not being listened to and not being heard.
34. She dealt, at pp.18-19 of the transcript, with the vital questions as to whether a move was practicable as well as to whether a move was wise. As to whether a move was practicable, she was asked the question:

"One point you do mention and that is how you could possibly move these children without physical --- "

35. Dr Newth intervened:

"Yes. I think that's something that really hasn't been thought through."

36. As to whether a move was wise, she had this to say. The question was, in summary form, did she consider that it was far too risky to contemplate moving the children. Her answer was as follows:

"Yes. I feel that they are well settled where they are. The school reports that are in the bundle would indicate they're doing well at school, they're happy there. They've got things they know. They've got a wider circle now of friends. They're part of the local community, as well as part of their family, as they've grown older, and I think there's no guarantees that moving to a different situation will actually make things any easier for them unless of course they don't have -- well, it would be nice to think that they could move to Cornwall, that they would get on extremely well and that they could then have free and easy contact with mother. I can't see in view of the situation between the parents that that situation would actually end up being better than the situation that they're in at the moment."

37. The questioning continued:

"Q.And they would be damaged, would they not, by doing something that they do not want to do, or could be?

A.They could be. Obviously you have to make children do things they don't want to do sometimes. I don't think that. But particularly with [B], at the moment I think it would just be giving him a message that - even further - nobody's listening to what he wants or what he says.

Q.Could that have a long-term effect on him?

A.I don't think it would do a lot for his trust in adults in general."

38. A little later, she said that to disturb the relationship with the mother might have long term effects on his well-being even into adulthood.
39. Finally, I draw attention to the view of Dr Newth at p.24 in the transcript, when she was questioned by the recorder. The recorder said this:

"Dr Newth, if I make a finding today that the mother has manipulated these children in such a way that they do not want contact, should I be concerned about other aspects of her parenting?"

40. This is the answer:

"From -- there's very little sort of - I can't think of the word - independent evidence about how they function outside of the home situation. In fact, there's a couple of very short school reports and they've also got a number of other places that they go to and they manage quite well. I mean, there's no evidence in the bundle that outside of contact they're anything but functioning quite happily and doing well in other aspects of their life. So as things go at the moment, no, I think that the manipulation is about contact and the relationship between Mrs [M] and Mr [T]. And I appreciate that I've come into this very late and there's other people who've known the family over a period of time who might actually know the children better in other situations. Most of us have only seen them at times when they've been upset and angry, but from how they are when they're not talking about their mum and dad they're fine, both chatty, happy, open sort of children."

41. How did the recorder deal with that evidence? At page 5 of the judgment she seems to diminish Dr Newth in this way. She said:

"By the time [B] came to see Dr Newth he had told his story on very many occasions. Perhaps he was not well rehearsed but he would certainly know it well. It is not surprising, therefore, to find that Dr Newth believed him when he was reciting the allegations to her. Dr Newth came in late on this case. She had certainly been given very many documents to take on board. She had not seen the video transcript and had not seen the video, but I find that no blame can be attached to her for this omission; after all, she was not to know that one was available.

Bearing in mind what I have already said, that it is not surprising that Dr Newth at this stage came to make the assertion that she believed [B], she firmly came out and stated that residence should not be changed. She stated that this was because of the level of distress which was now being caused to [B] and that it was getting beyond what she would wish a child to go through. Dr Newth pointed out various advantages and disadvantages of a change of residence to which I will refer later."

42. There are many problems with those two paragraphs. The first is that the recorder seems to have misunderstood Dr Newth to say that she posited her opinion on her belief in the allegation of physical abuse. But as the transcript shows, that was simply not the basis on which she approached the case. Secondly, and of equal importance, is the fact that the recorder seems to have thought that Dr Newth was pointing out various advantages and disadvantages of a change of residence. But as the passages which I have cited from both her written report and her oral evidence make plain, what she was essentially saying to the recorder was that there was no realistic prospect of gain at the end of putting the children through the inevitable short term trauma; things would be no better. By comparison with those two points, it is almost trivial to say that the recorder was incorrect in saying that Dr Newth had not had the transcript of the video.
43. As to Dr Newth's opinion that the Ms were performing well by the children save in the very important area of contact, the recorder had only this to say at p.15 of her judgment:

"Although Dr Newth said that in her view these actions would not impinge on other parts of the parenting abilities of Mr and Mrs [M], I find I cannot believe that. I have concerns about how this behaviour on their part is affecting other aspects of these children's lives."

44. The recorder's inability to accept Dr Newth's opinion is not further explained; and it is notable that the recorder elicited that opinion in answer to a question of her own and she did not pursue the issue further with Dr Newth. She had nothing to say in reaction to the answer and so at the time seemingly assented to it.
45. As to the concern of Dr Newth that the practical problem of how to move these two children had gone unconsidered and simply not been focused on, the recorder makes no mention. All she had to say at the end of her judgment, having announced that she was granting residence to the father, was:

"I would hope that with [the children and family reporter's] assistance the changeover can take place at a relatively convenient and soon time. I am not sure what the position is concerning half term. ... I see no benefit to these children to remain with Mr and Mrs [M] until the end of the school term. If it has to happen, it has to happen in a civilised and quick fashion."

46. One of the most fundamental concerns that I have is that the recorder has simply glided over what was the major problem in the case. How on earth did she think her conclusion was to be implemented and, perhaps, enforced? She had been given due warning by the expert that that question had to be addressed and had not been addressed. She seemingly ignored the warning. The consultant was jointly instructed. She was giving a very clear steer to the recorder, having conducted the relevant interviews most recently. It was simply not open to the recorder to depart from her conclusion and recommendations without full and convincing reasoning, which I simply do not find in this judgment.
47. I turn then to the third issue: the recorder's dismissal of the opinion of the general practitioner, Dr Goodman. She says at the outset of her judgment that B had seen a great many people. She refers to other general practitioners, a clinical nurse, police and social services. She then says:

"He has seen Dr Goodman on a great many occasions, at least seven of which I believe to have been unnecessary. This involvement I believe to have been an abuse in itself."

48. Let us assume for the moment that "this involvement" does not refer back to Dr Goodman's consultations alone, but refers to the consultations with other professionals as well. Even so, there is a pretty clear criticism of a committed general practitioner, including the criticism that he had had seven unnecessary consultations. Where in the evidence is the foundation for the criticism? It is simply not there. Dr Goodman did not have that point put to him expressly and the recorder seems to have lifted it from Mr Tolson's written submissions in closing. It seems to me that that was unwise and unguarded. No doubt it was open to Mr Tolson to submit that, just as he has submitted that Dr Goodman was not B's general practitioner. But I do not think the recorder should, absent clear evidence, have embraced the criticism as her own.
49. Then she criticises Dr Goodman, lower on the same page, in saying this:

"To my mind Dr Goodman on 2nd April 2001, with a child before him exhibiting what he considered were non-accidental injuries, who was nervous and clingy, suffering from depression and feeling of worthlessness and at risk of further injuries and psychological disturbance, missed the opportunity to refer this whole unhappy matter and to have a case protection conference convened. That he did not do so to my mind shows that Dr Goodman was being less than objective; that he had sympathy for the mother and was not being child-focused."

50. That again is a very strong criticism to make of a committed general practitioner. What is the foundation for it? Dr Goodman was asked at some length as to whether he had reported these injuries himself to social services. He said, reasonably enough, that he had not because he understood that they had already been involved. That child protection agencies had been directly involved by the mother cannot be in doubt; otherwise there would not have been a memorandum interview conducted within days of Dr Goodman's consultation. So it seems to me that the recorder must have overlooked or misunderstood the evidence that Dr Goodman had given at p.58 of the transcript.
51. Then she comes on to criticise him at length for the manner in which he had conducted his consultation on 2nd April. She said:

"Dr Goodman was the first to interview [B] following an alleged assault on 1st April and in connection with this I am reminded of Hershman and McFarlane at paragraphs D3091, the guidelines laid down when you interview children."

52. That is the third unwarranted criticism of the general practitioner. Nobody has thought it necessary to refer us to Hershman and McFarlane and I assume that the paragraph deals with the guidelines either in the Memorandum produced by the Home Office or, alternatively, guidelines given either in the Cleveland Report or in a number of decisions of this court. But all those boundaries are of application in the context of child protection procedures and are not of relevance to consultations conducted by general practitioners when presented with a patient complaining of physical injuries. We have seen Dr Goodman's notes of the consultation on 2nd April. They suggest nothing but a perfectly proper and conventional discharge of his obligations to a patient. He records the bruises, their dimensions and their site and he records briefly the child's explanation.
53. Mr Tolson does not seek to support the recorder's condemnation of Dr Goodman's conduct of the interview on 2nd April. In his submissions he had directed his criticism to the doctor's conduct of the interview on 31st January 2002 concerning the touching of B's penis. Seemingly the recorder misunderstood this aspect of the case.
54. So it is a matter of concern to me that the recorder disposed of Dr Goodman's contribution on the basis of three criticisms, none of which stands up to analysis.
55. For the reasons that I have given, I conclude that this judgment is fatally flawed and that the order cannot stand. It remains an extremely worrying case. The recorder has investigated the case over three days of evidence. She has formed a very clear view that the mother and Mr M are in large measure responsible for B's obdurate refusal to go to his father. She has formed the clear view that the father has throughout acted with reason and with moderation. In those circumstances it is perfectly understandable that the recorder was determined to undo the effect of the manipulative conduct. But in the end she has simply failed to face up to the virtual impossibility of reversing a now deeply embedded reaction. She has failed to focus on the professional view that there would in any event be no discernible prospect of gain at the end of the hugely distressing transition that she desired.
56. I am very concerned as to the future conduct of this case. It is, in my opinion, unfortunate that at various stages the possibility of separate representation for these children has not found favour with the court. Even appreciating the huge difficulties that CAFCASS Legal labours under, there must be a residue of cases, even in the County Court, where the dimension of the problem is sufficient to justify separate representation. I am particularly concerned to think that the setting aside of the order below is perhaps to gain for the mother what she has, consciously or unconsciously, achieved by putting herself and her own convictions above the interests of the children.
57. This is a case in which the father has not sought a contact order in the alternative. He has, as it were, nailed his colours to the residence order mast. But contact is simply not to be abandoned as the norm, and the achievable norm, even in a case as fraught as this. Things can, and do, change. Indirect contact is at least proposed by the mother. Even though no order is sought, I am of the opinion that an order should be made. The father should receive, and must receive, photographs, school reports and cards when the children are on holiday and at festival times; and the father must be free to send cards and present at his reasonable will.
58. We have in this appeal and, seemingly, in the course of the trial below, paid scant independent regard to R. Of course she is going to be heavily influenced by her elder brother. But as the video interview shows, she has the normal sort of fractious brother/sister relationship, and it may well be that skilful management in the future will allow her at least to develop an independent relationship with her father.
59. Ms Pittaway has told us that there is some sort of replication of this very sad situation in that Ms H's children do not have contact with their natural father and regard Mr T as their father and call him father. But that sort of replication should not, in my opinion, obstruct or influence in any way what must be a continuing commitment to restoring some sort of normality into these children's lives.
60. The problem of contact and enforcement has been one that has bedeviled the family justice system for many, many years, particularly in cases where the seemingly implacable opposition comes from the maturing child. Mr Justice Wall, in his recent report to the Lord Chancellor, has highlighted the deficiency and inadequacy of the remedies open to the court at the conclusion of trials at which the problem is identified, at least in part, in the conscious or unconscious obstruction of the primary carer. Some of the remedies that he urges government to consider might well be tried in the present case. Obviously there is a profound emotional and psychological disfunction which needs to be addressed and treated in this family. If it is simply ignored, the long-term prospects for these children are not good, assuming that they go through the remainder of their childhood without having any relationship with their own father.
61. But at the end of this round, in what is a long, long chapter of litigation (and no doubt it is not going to be the last round either), it seems to me that the only order we can make is an order allowing the appeal, setting aside the order made by His Honour Judge Morris on 31st May and making an order for contact along the lines that I have indicated.
62. MR JUSTICE FERRIS: I agree with what my Lord has said and with the order proposed by him. I am very conscious of my want of familiarity with this area of the law but, as we are differing from the recorder, I think I should add some words of my own.
63. There are five aspects of this case which have particularly impressed themselves on my mind and have led me to the conclusion that the recorder's decision should not be allowed to stand. Most of them have, I think, been fully discussed by my Lord and I will therefore only deal with them briefly.
64. The first of these factors is the recorder's treatment of Dr Goodman's evidence. In my judgment the criticisms of Dr Goodman made by the recorder were unfair and failed to recognise that Dr Goodman, although not apparently the family's registered medical practitioner, was involved in the matter as the general practitioner of the family, or at any rate of B. He naturally had involvement with B in that capacity over a significant period of time and he had views about the matter which were, in my judgment, worthy of respect.
65. The second aspect is that concerning the video. But for the correction and comment made by the recorder in approving the transcript of her judgment, I would have rejected criticism of what she says about the video on the basis that she must have known which video she had seen and have realised and been aware that it related to the April 2001 assault and not to the assault described as sexual abuse (although that is an exaggeration) in relation to which she mentioned the video. Having seen the recorder's addition and comment, it seems extremely unlikely that she had seen the video at all. Had she done so, it seems to me to be very doubtful whether she would have made some of the other findings which she did make.
66. Thirdly, and a matter of extreme importance, is the recorder's treatment of Dr Newth's evidence. The recorder seems largely to discount what Dr Newth said on the ground that she had come to the matter late and that her views were coloured in some way by the fact that she believed what B told her when she saw him. As to the latter matter, I doubt whether the recorder would have thought that such belief was a matter of criticism in any way if she had seen the video. But even if that view of the matter be wrong, it seems to me that Dr Newth's report and her answers in cross-examination demonstrate a very full and balanced approach to the matter. That is a matter which I shall return to in a moment. She has got to grips with the practical consequences, and the consequences so far as the children are concerned, of bringing about a change of residence at that stage. It was not right, in my judgment, for the recorder largely to have rejected Dr Newth's evidence in the way that she did.
67. Fourthly (and I think it is a matter which was not much covered by my Lord's judgment), it seems to me that the recorder was quite unjustified in saying, as she did at p.6 of her judgment:

"I have concerns about Mr and Mrs [M]'s lifestyle. They are always together with the children. The children are never alone with baby-sitters. They appear to have a restricted social life and support only from professionals."

68. As to the first three sentences in that passage, one wonders what would have been the recorder's view if the facts had been the converse of what she states. What would have been the position if it had been right to say that Mr and Mrs M (one or other of them, if not both) were seldom with the children and that the children were often left with baby-sitters while Mr and Mrs M were out? That would represent a state of affairs which would truly be open to criticism. As to the third sentence relating to the supposed restricted social life and support only from professionals, the recorder seems to have wholly left on one side what was said, particularly by Mr M in his evidence, about their visits to members of his family and the way that the Ms and the children are, as it seemed to me from reading the evidence, in a very real sense part of a genuine extended family. The view which the recorder took about this supposed lifestyle it seems to me was without any justification whatever.
69. Fifthly (and this brings one back to Dr Newth's evidence), as my Lord has said, the recorder really does not seem to have given appropriate attention to what I would have thought stands out a mile in this case, namely the practical difficulties involved in effecting a change of residence in the circumstances which exist and the impact on the children of such a change if it is brought about. It seems to me that Dr Newth was wholly justified and realistic in the passage which my Lord has cited, where she referred to the risk that one would bring about a change of residence with great distress and trauma all round but without effecting any improvement in the circumstances affecting the children.
70. For those reasons in particular I endorse entirely the view expressed by my Lord.
71. Finally, I would add a word of sympathy for the position of the father. It would be wholly regrettable if the effect of setting aside the recorder's order is that the father is excluded from his children's lives. That will require that the father does not of his own volition abandon attempts to establish contact. No doubt that will have to be indirect in the first instance, as my Lord has said. It requires also that the Ms must make a special effort not to discourage such contact occasions as it may be possible to arrange. No doubt the full support of all available resources in the form of professional and social assistance will be required. But I would not like it to be thought in any way from this judgment that the court is endorsing the exclusion of the father from the lives of the children.
Order: appeal allowed and order of HHJ Morris of 31st May set aside; father to have contact as indicated; public funding costs assessments for both parties.