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England and Wales Court of Appeal (Civil Division) Decisions
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B (Children), Re [2002] EWCA Civ 1666 (25 October 2002)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1666.html
Cite as:
[2002] EWCA Civ 1666
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Neutral Citation Number: [2002] EWCA Civ 1666 |
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B1/02/0438 |
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WILLESDEN COUNTY COURT
(MR RECORDER BRYAN)
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Royal Courts of Justice Strand London, WC2 Friday, 25th October 2002 |
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B e f o r e :
LORD JUSTICE THORPE
LORD JUSTICE RIX
LADY JUSTICE ARDEN
____________________
B (CHILDREN)
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(Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
____________________
MR. J. COHEN Q.C. and MR D. WILLIAMS (instructed by Messrs Redferns, Harrow) appeared on behalf of the Appellant.
MR. T. SCOTT Q.C. AND MISS T VILLAROSA (instructed by Messrs Lakhani & Co., Willesden) appeared on behalf of the Respondent.
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
- LORD JUSTICE THORPE: The parents in this appeal married in 1990. There were two daughters of the marriage, B, who was born on 7th September 1992 and is accordingly 10 years of age, and N, born on 5th January 1994, 8 years of age. There have been extensive proceedings between the parties in the county court which culminated in a listing to determine the future of the father's contact to the two girls, which was intended to commence before Her Honour Judge Bevington on 10th December 2001. In the event, the case had to be listed or transferred to the list of the recorder, Mr Recorder Brown, who then heard evidence for two days in December, two days in January 2002, a fifth day in February , with submissions and judgment on 18th February. His order was that the father's contact to the two girls should continue at the Accord Centre under the supervision of the Accord expert staff, but with a reduced frequency of only six times a year. Against that conclusion the mother lodged an application for permission on 1st March, and on 7th March I directed a stay pending the determination of the mother's application for permission, which I directed for hearing on notice.
- There was a hearing in front of this court of that application for permission, extended to appeal to follow if permission granted. It came before Ward LJ and Collins J in the summer. Ward LJ concluded that it was not possible to dispose of the case on that day. However, he granted permission and directed that the case should be heard by a constitution of three members of the court on a date to be fixed. Today is that day. We have had the great advantage of skilful submissions, both from Mr Jonathan Cohen Q.C. for the appellant and Mr Timothy Scott Q.C. for the respondent.
- The first thing to be said is that the Recorder had the advantage of seeing and hearing a lot of direct oral evidence. Secondly, it is evident that he gave a lot of thought and care to the case and did his best to arrive at a balanced conclusion that would be best for the girls in what was on any view a difficult case.
- The difficulties in the case really stemmed from the psychiatric condition of the parents. During the course of the preparation of the case for trial, the father's solicitors instructed a consultant adult psychiatrist to make an assessment of the father's psychiatric condition. Dr. Foster's report, dated 19th January 2001, diagnosed the father as suffering from a long standing personality disturbance, characterised by self-absorption, poor impulse control, externalisation of blame, a sense of self-entitlement, low self-esteem and subsequent inter- personal difficulties. She continued that his depression, anxiety about the perceptions of others and obsessive compulsive behaviour can be best conceptualised as responses to cumulative life stresses against this background of personality disturbance. In relation to prognosis and treatment, she said:
"Due to the longstanding nature of [his] difficulties and pattern of poor interpersonal relationships, expectations for significant change are limited and psychotherapy, if suitable, would need to be prolonged. In my opinion, the limited impact of previous periods of individual psychotherapy and his well defended and fragile presentation, combined with the stresses inherent in interpersonal relationships indicate that he is not currently suitable for individual psychological intervention.
Other possibilities for treatment include group psychotherapy at The Portman Clinic or a therapeutic community, such as the Henderson Hospital."
Dr. Foster subsequently wrote a letter during the course of the trial, dated 24th January 2002, in which she simply confirmed that she had continued to keep in touch with the father and that there was essentially no significant change or development.
- As to the mother's state, a report was commissioned by solicitors from a consultant adult psychiatrist, Dr. Catalan. His assessment of the mother's mental health was expressed in this opinion:
"[The mother] suffers from mild to moderate symptoms of anxiety with occasional depressive symptoms. These are characterised by worrying thoughts, disturbed sleep, behaviour aimed at ensuring safety within the home, as well as tearfulness and pre-occupation with her own welfare and that of her daughters."
She considered the impact of continuing contact on the mother's anxiety symptoms and the possibility of whether they could be alleviated by the cessation of contact. In this section he concluded with this sentence:
"It is difficult to see how on its own discontinuation of contact would ameliorate the mother's symptoms."
- When coming on to consider interventions he said:
"It is very likely that psychological help for the mother and her daughters could help to ameliorate many of the stressors and difficulties she is facing."
In relation to the daughters, he said in his penultimate paragraph:
"It is therefore essential that an expert's opinion on the likely impact on the children of any changes to contact orders is obtained."
He concluded:
"Improvement in the mother's mental state and behaviour would clearly result in a reduction of her distress and would also be likely to result in a more harmonious relationship with the children. Anything that could be done to ensure that the mother receives adequate treatment would result in benefits for all."
- Of the greatest relevance to the determination of the issue was, however, the assessment of the consultant child and adolescent psychiatrist who was unilaterally instructed by the mother's solicitors. The expert to whom they turned for help was Dr. Dora Black. She gave her opinion in writing on 10th October 2001. It is enough for the purposes of this judgment to turn to page 14 where she applied a test, the Spence Children's Anxiety Scale, to ascertain the level of anxiety from which B and N were suffering. In relation to B, she said that she scored 54 on the Spence scale, which put her in the clinically anxious range. Of N, she said that the Spence scale was essentially for older children but there was an indication that the Spence scale would put her in the borderline range for clinical anxiety. In paragraph 8.1 she considered reports from Dr. Catalan and Dr. Foster and said this:
"Undoubtedly mother's anxieties have been picked up by B, but even if mother had been able to hide successfully her own anxieties, B, in my opinion, would have developed them independently as a result of her own observations of father's behaviour. She has witnessed the breaches of injunctions, his repeated attempts to reconcile, his ill-judged communications to her about her mother, and father's erratic sometimes frightening behaviour towards her. She has witnessed father's shoplifting. She has experienced his violence towards her and she has witnessed her mother's fear of father. As a result she has developed a serious psychiatric disorder for which she requires treatment if she is to lead a normal life. Without the appropriate therapy she is likely to continue to suffer and her development will be impaired."
Counsel agree that where Dr. Black refers in the penultimate and ultimate sentences of that citation to she, she means B and not B's mother. That construction is inevitable from the whole passage that I have read. I continue by citing paragraph 8.2. Dr. Black wrote:
"B is suffering from an emotional disorder -- Generalised Anxiety Disorder. She could be helped by psychotherapy available from her local NHS Child and Adolescent Mental Health Service but unfortunately they have refused to accept the referral whilst the court proceedings continue."
The diagnosis of emotional disorder, Generalised Anxiety Disorder, is a very specific psychiatric diagnosis which commands the closest attention from this court or, indeed, from any court considering child protection and welfare issues.
- In relation to N, Dr. Black said in paragraph 8.3 that she had been protected from some of the stresses to which B had been exposed. She has lived less with her father and therefore been less exposed to the domestic disharmony:
"Nevertheless she shows some symptoms of anxiety, not yet amounting to a full blown psychiatric disorder. In my opinion, if she continues to be exposed to the situation of supervised contact as described in my previous report, it is likely that she will deteriorate in her mental health. It should be remembered that, even with the close supervision provided at the Accord Centre, father was often late ..."
In paragraph 8.4 Dr. Black pointed out that these girls had potentially inherited a double genetic vulnerability to mental health problems. The mother suffers from anxiety, whilst the father has both a personality disorder and a depressive disorder. Dr. Black accordingly moved in 8.7 to her recommendation to the court, that there should be an order for indirect contact only.
- The judge also had the advantage of a report from the children and family reporter, which broadly followed both in time and in emphasis the recommendation of Dr. Black.
- On the other hand, he had three reports from the Accord Centre, a well known resource that provides high standards of supervised contact for children in their area. The reports were joint reports from the professionals who had been involved most closely with the family but, in the event, it was Mrs Nancy Assimaki who came to the court to give evidence in elaboration of the reports. As Mr Scott has pointed out, she is a lady with impressive academic achievements. She has a BA in psychology achieved in Greece in 1994. She has an MA in psychotherapy, achieved here at the City University, and she has a certificate in systemic therapy for couples and families which she gained at the Institute of Family Therapy. She has three years experience working with children and families. The Accord Centre reported originally on 4th September 2000, and at the conclusion of that report is the recommendation that the children should see a child psychologist to assess a number of difficulties which were then seen by the Accord to be troubling them, although I note that within that list there is no mention of the anxiety disorder subsequently diagnosed by Dr. Black. It seems that that recommendation was not implemented. The second report of March 2001 in its recommendations refers back to and repeats the recommendations in the first. The final report from the Accord Centre, dated 14th July 2000, ended with the recommendation that contact should continue supervised once a month for a further year with a progress report thereafter. It recommended for the mother some help from a specialist to ensure that she had a better understanding of the father's condition as well as some counselling on her own account. It is to be noted that in the summary that precedes the recommendation, this was the view of the Accord Centre:
"However, we do believe that the girls contact with the father is a very small part of their lives and is unlikely to have such a detrimental effect on them as the mother claims."
- Before the judge there were these two different streams of expert evidence to assimilate. There was, on the one hand, the evidence of the three psychiatrists and the court welfare officer invoked by the mother. On the other hand, there was the evidence from the Accord Centre relied upon by the father. This is briefly illustrated in the course of Dr. Black's evidence. When she was cross-examined by Miss Villarosa, a question was put to her at page 44 of the transcript:
"To come back to the Accord Centre, they have come to a totally different recommendation from yours."
After an interchange as to the standing of the Accord, Miss Villarosa picked it up again:
"They have come to a totally different conclusion."
The answer from Dr Black was this:
"I do not think that they have come to a totally different conclusion. They say that there is a need to continue. If contact is continued, it must be closely supervised in a specialist centre; it cannot be left to the ordinary contact. That seems to me to be saying something quite similar to what I am saying except that I do not think that it is feasible or practical and that even that is going to be sufficient to protect the children."
- How does the judge deal with this in his judgment? He turns to Dr. Black's report. He says:
"On 10th October 2001 there was the second report from Dr. Black. She says in paragraph 8.1:
Mother has developed a serious psychiatric disorder, for which she requires treatment if she is to lead a normal life."
That is an unfortunately erroneous citation of what Dr. Black had actually written. Her actual words I have already cited. The true citation should have been, "as a result she has developed a serious psychiatric disorder". The "she" in the correct citation is not the mother but B. I am left to wonder whether that erroneous citation is in fact an indication that the judge had misread this important part of Dr. Black's assessment and had failed to understand that the serious psychiatric disorder was in the child and not the mother.
- The Recorder then passes over the very important paragraph 8.2, other than to say at the top of page 7 that B is suffering from emotional disorder, Generalised Anxiety Disorder and that she needs treatment. That is accurate enough, but I wonder whether the Recorder had fully understood the gravity of a formal and specific psychiatric diagnosis, such as Dr. Black was making. He passed to deal with paragraph 8.3 in which Dr. Black had turned to N's symptoms, and he then moved on, passing over the not unimportant paragraph 8.4, which points out the girls' double genetic vulnerability to mental health problems, to make a citation from paragraph 8.5, that the girls are essentially supportive of their mother's anxiety. Of that passage, the judge said that Dr. Black's assessment was realistic because Dr. Foster had made clear that the father was a dangerous man who cannot accept advice and who has no insight into the effect of his behaviour. There is nothing in that passage to suggest that the judge was in any way questioning or departing from Dr. Black's assessment. The question is whether he has fully understood that crucial aspect of the case. That question really arises from the only other passage in the judgment in which he dealt with Dr. Black's recommendation. It commences at page 14 when he turned to consider the wishes of the children. He said:
"I have to examine the fact that the court welfare officer, and indeed Dr Black, now conclude that the children do not wish to see their father."
Throughout the remainder of that page and the first half of the following page, he considers that conclusion against the evidence from the Accord Centre, and then states his position thus:
"When set against the observations of those at the contact centre, I conclude that it would be quite wrong for the court to come to the conclusion that the children do not wish to see their father."
So far so good, in my estimation. It was open to the judge to prefer the evidence of Mrs Assimaki to the evidence of Dr. Black as to the childrens' wishes in relation to continuing contact. But wishes are only one ingredient of welfare.
- That brings me to the next following sentence, which gives me considerable cause for concern. The sentence reads:
"Equally, it would be wrong for the court to conclude that the children were anxious about seeing their father or that there could be any contribution to any psychiatric condition of anxiety such as described by Dr. Black."
The judge does not go on to explain with any reasons why it would be wrong for the court to reach that conclusion. He does not explain how it was possible for the court to conclude other than that the children were anxious about seeing their father or that continuing contact would make a negative contribution to, in the one instance an already developed psychiatric condition, and in the other an incipiently developing psychiatric condition. The only evidence that could possibly have been cited by the judge to justify such a conclusion would, I suppose, be the one sentence from the final report of the Accord Centre which appears at page 262 in our bundle and which I have already read, to the effect that contact was only a small part of the girls lives and was unlikely to have such a detrimental effect as their mother claimed.
- There are two apparent reasons why it was not open to the judge to found himself on that. The first is that it was earlier in time, July, whereas Dr. Black was seeing the children and making her assessment in October 2001. But far more important than that, Dr. Black was the only expert in the case qualified to make a diagnosis of the childrens' psychiatric state. It was not open to the Accord Centre to proffer a contrary diagnosis or to question Dr. Black's diagnosis. It was not open to the judge to decide the case on any other footing but that Dr. Black was incontrovertibly correct in her diagnosis of the girls' psychiatric state. In my judgment, that piece of evidence was effectively determinative of the issue. Of course, Mr Scott says, with perfect force, that, in the end, the task for the judge was to draw the balance between, on the one hand, the risks of continuing contact with the father, against, on the other hand, the risks that flow from terminating contact. The judge did not specifically direct himself in that way, nor indeed do I think he was asked to direct himself in that way. Had he done so, the evidence of Dr. Black effectively concluded the weighing exercise. Once she had diagnosed the serious state of B's disorder and N's potential to develop the same degree of disorder, I simply do not see how the court could take the risk of continuing contact without some fundamental change, either in the mental health of the adults in the case and/or the mental health of the children. That is a sad conclusion because, obviously, on the ground the impression of the experienced workers at the Accord Centre was that the problems were manageable and the relationship capable of prospering. However that was only a partial view of the relevant considerations.
- Mr Cohen has suggested that we should not only allow the appeal but should impose a restriction on the renewed application by the father under section 91(14) of the statute. I do not feel that that would a proper addendum to the order allowing the appeal and setting aside the contact regime that the judge directed. We do not know a lot about what has been happening in the interim. It is the fact that the father has lost the opportunity of seeing his children ever since a stay was imposed. It is now 16-months since he has seen the girls. We know that he has had some sort of referral to the Portland Clinic in the interim. Mr Scott tells us that they have said that either he did not need their facility or that their facility was not appropriate for him. We know that B has had three visits to the C.A.M.H.S. centre and that the centre has said that for the time being they do not require to see her further. We know that the mother has been having some continuing treatment, probably at the same resource. Without much greater information about what has happened since 18th February 2002, I think that it would be wrong for this court to do any more than complete the conventional determination of the appeal process by allowing the appeal and setting aside the order below.
- LORD JUSTICE RIX: I agree.
- LADY JUSTICE ARDEN: I also agree.
Order: Appeal allowed; order below set aside.