S-G (Children), Re

This is an application for permission to appeal an order of HHJ Hughes, sitting in the Wolverhampton County Court, given on 11 April. The application was the subject of previous orders in this court: ultimately that it should be heard by a three-judge constitution and that the appeal should follow the permission application. Since that first order, Ms Lorna Meyer QC has come into the case for the applicant mother and we have treated her submission this morning as the submission on an appeal and impliedly, granted permission, and that I would now do expressly.

So what should be the disposal of the appeal? Ms Meyer says that the judge has arrived at an impermissible order as a result of a number of cardinal errors which she made in the course of her judgment. Before considering those criticisms I would establish first the essential background. The original parties to the proceedings were the parents of four children Kristian, Kyla, Reilly and Fabian, who are aged respectively 13, ten, seven and four. The parties had married in 1993 and separated in July 2006. The proceedings under the Children Act commenced in January 2007 when interim orders were made. At the time of separation the father left the final matrimonial home with the mother in charge of the four children as primary carer. However, the eldest child, Kristian, had not settled and, crucially, moved to live with his father once his father had achieved some suitable accommodation.

The first CAFCASS contribution was made by a student, by name Rhona Lowe. She was acting under supervision and, as the case developed in complexity, the responsibility passed to Mrs Barrow. A very significant order was made on 20 June 2007 joining the children as parties to the case and appointing Mrs Barrow as their Guardian ad Litem. She in turn instructed Mr Mitchell to present their case at the hearing, for which directions were given in the autumn of last year.

The trial commenced on 19 February with, I think, a two-day time estimate. On those days, evidence was given by the mother, the father and by the young woman with whom the father had commenced cohabitation in September 2006. Unfortunately the adjournment from 20 February to the next available date on 4 April allowed opportunity for further development and fresh evidence. Mrs Barrow had filed a first report, which was inconclusive in its recommendation, in October 2007. Her clear position had emerged by the date of her second report, 17 January 2008, and that position obviously influenced the development of the case on 19 and 20 February. Mrs Barrow was very clear in her recommendation that the three children should move from mother to father, reuniting the sibling group under one roof. At that stage the three younger children were expressing a wish for that outcome.

During the opportunity presented by the adjournment the three younger children seemingly changed their minds, certainly changed their express wishes, and so a further investigation by Mrs Barrow was necessary and led to what might be described as a supplemental report of 21 March. In that report Mrs Barrow expressed considerable reservations as to the reliability of the altered wish of the three younger children and suggested that it had been partly influenced by the mother, alternatively that it was reaction to short-term attention that the mother was lavishing on their needs. She gave her oral evidence on 4 April and that is the only evidence that has been transcribed. She was in the witness box for a long time. We see the judge observing halfway through the transcript that she had been two hours in the witness box and the transcript runs to some 68 pages. Despite necessarily taxing cross-examination, perhaps I should say questioning, by Ms Brown, who represented the mother, she did not waver in her recommendations and, as the judge was to record at the conclusion of her oral evidence, was if anything firmer than ever in her recommendations. The judge reserved her judgment and on 11 April the parties reassembled, when the judge seemingly read out a prepared script. Subsequently the script was made available but the judge entered the caution that she had not stuck to the script rigorously and, at a relatively late stage, we have been furnished with a transcript of her actual words.

At the conclusion of judgment, Ms Brown sought permission to appeal, which was refused. The judge did, however, grant a brief stay to enable Ms Brown to apply to this court. Here orders were made extending the stay and the case has unfortunately had to be listed on three separate occasions to ensure a hearing before a three-judge constitution.

I return to Ms Meyer’s criticisms. She makes a number but helpfully marshals them under three separate heads. The first is the submission that the judge failed properly to address the welfare checklist. Secondly, she says that the judge simply adopted the recommendation of the Guardian ad Litem, failing to carry out any critical analysis of her own and directing herself impermissibly in paragraph 43 of her judgment when she said:

“While I have considered the mother’s case very carefully and also listened to all that the father has to say, I conclude that there is no clear basis put forward to persuade me to depart from Mrs Barrow’s recommendations.”

Thirdly, Ms Meyer advances a discrete criticism that it was not open to the judge to find as she did in paragraph 23 of her judgment that the mother had physically assaulted Kristian on a number of occasions. She submits that the judge bypassed the necessary critical analysis of the available evidence and did not apply the elevated standard of proof required by the speeches in the leading case of Re: H and R(Child Sexual Abuse: Standard of Proof). 1 FLR 80.

Equally, I think that the sentence which Ms Meyer highlights in paragraph 43 of the judgment is open to criticism if taken in isolation. I am less impressed in Ms Meyer’s criticism of the finding that on a number of occasions the mother had punched Kristian. The evidence was not extensive. Kristian had made frequent assertions to Mrs Barrow. In one respect, his account had been corroborated by that of his sister. There had historically been a complaint by Father to police and social services, which had been investigated with negative conclusion, but that feature was recognised by the judge in the paragraph in question. The judge referred to the mother’s own evidence that she recognised that she had a tendency to lose her temper with C. The Guardian was adamant in rejecting the suggestion that she had misinterpreted Kristian’s words or that Kristian had fabricated stories. That seems to me to be significant. The child’s words were sufficiently clear and sufficiently often stated to be plainly incapable of misinterpretation and if Mrs Barrow, as an experienced guardian, reached the expert conclusion that the accounts were not fabricated but were credible, she was entitled so to opine and the judge was entitled to rely on her opinion.

So how far do the two previous criticisms take Ms Meyer? She says in relation to the first that the decision in the case of Re: G (Children) [2006] UKHL 43 in the House of Lords sets the standard for the trial judge, in particular paragraph 40 in the speech of Lord Nicholls when he had said:

“in any difficult or finely balanced case it is a great help to address each of the factors in the list, along with any others which may be relevant, so as to ensure that no particular feature of the case is given more weight than it should properly bear.”

Ms Meyer says: “Well, it was a difficult and finely balanced case and the mother was entitled to a profound judicial analysis before losing the day.” I, for my part, see an answer to that submission and to the second submission in drawing attention to the vital and importance of the role performed by Mrs Barrow in this case. She was not, as is customary in private law proceedings, simply providing the court with the benefit of a report as a CAFCASS officer. She was in the case to safeguard and advance the interests of the children and, once she had reached the clear conclusions that the children had suffered emotional harm and were at risk of future emotional harm in the primary care of their mother, the case took on a quasi-public law complexion. The judge had to weigh up whether that analysis of harm suffered and risk of future harm was realistic and well-founded. If so satisfied then it was clearly her responsibility to guard the children and the only evident way of achieving that was to transfer their care and reunite the sibling group. The judge makes a whole series of critical findings against the mother.

The judge went on to make a series of findings which can all be grouped under the general head of misconduct in involving the children in the contested proceedings: in showing them evidence; in coaching them in written statements of their wishes and feelings; in influencing the views that they expressed; and all that particularly in relation to the dramatic shift in their stated position over the unfortunate adjournment. The judge also found that the mother had impermissibly disclosed information from the contested proceedings within the local community.

The judge equally criticised the mother in relation to contact. Here she found that the mother had, on occasions, almost capriciously changed contact arrangements, with resulting confusion for the children. She looked at a specific incident of handover at the beginning and end of the children’s Christmas holiday, comparing the manner in which the father had achieved their return against the manner in which the mother had taken them to the father, or handed them to the father, at Christmas Day. In relation to that the judge preferred the father’s evidence and reached the important conclusion that the mother had sought to destabilise the father’s contacts with the younger children, leading her to pose the question: how proactive would the mother be in promoting future contact if they continued to live with her?

Then, in her continuing review of the Guardian’s contribution, she expressed no hesitation in finding that the mother had rejected Kristian and that she was alienating the other children against him. That finding preceded her finding of physical assault. So towards or at the conclusion of her review of the Guardian’s evidence she noted that the Guardian acknowledged that moving the children would be disruptive but that, in her judgment, that disruption would be less harmful than their remaining with their mother and being exposed to the risk of emotional harm. The judge then went on in her judgment to consider, less critically, the father’s case and in particular accepting that his current partner, Catherine Dixon, would be a support to the father but would not seek to supplant the mother in her perception of her role.

The judge then dealt with the intervening period by a direct citation of considerable length from the Guardian’s addendum. The view expressed was trenchant, including this passage:

“I have little confidence that [the mother] will actively promote their relationship with [the father]. I would suggest that the current situation has allowed [the mother] to manipulate the three youngest children and, whilst there is no argument that they have benefited enormously from being the centre of her attention, on balance I consider that all four children should remain together and live with [the father] and enjoy alternate weekend contact and holiday time with [the mother]”

The judge, having in paragraph 43 expressed herself in the passage I’ve already, cited did at least go on to say:

“I have considered the welfare checklist and human rights issues. These children have an overwhelming and urgent need for stability, security and protection from emotional harm. That need is in my view more likely to be met in the care of their father, who has shown himself able to take advice and act upon it, and has the ability to prioritise their needs over his own. In his evidence before me he showed a very clear concern for them and commitment to them which I did not glean from the mother’s evidence which focused far more on criticisms of the father and Catherine Dixon and her own needs than those of her children.”

So paragraph 43, read in its entirety, shows the judge explaining the crucial consideration that led her to make the order that she did. The order was not intended to be absolute, for the Guardian in her first written report and in her oral evidence had recommended that there should be a review in the mid-summer, partly because of her uncertainty or misgiving about the security of the father’s finances. That was specifically adopted by the judge when she said that the case should be listed before her at the end of July for a review, a time estimate of probably two hours, continuing:

“…because I suspect that there may be some issues about contact and so forth which will need to be considered.”

But we have today been informed that there are live ancillary relief proceedings between the parents, the crux of which is likely to be how the final matrimonial home will be dealt with. Of course the mother will be able to point to her need for that continuing resource. The father may, I know not, be saying that he must have his share of the equity to secure his financial position. But hopefully that aspect will have developed and it will be easier to make predictions in July than it would have been in April. Certainly there should be more information before the judge in July than was available to her in April.

So, by way of final summary, I think the judgment is regrettably incomplete on a number of issues but given the importance of the Guardian’s contribution and the strength of her view, and given the clarity and the extent of the judge’s findings it seems to me that the conclusion she reached, even if not ideally expressed, was a permissible conclusion. I would dismiss the appeal which we have granted.

I agree. I also agree with the strictures my Lord has made on the judgment. However, in my judgment the critical paragraph is paragraph 43, which my Lord has read and which I will not repeat. In my judgment the judge did not misdirect herself in relation to the CAFCASS officer/Guardian. It is of course trite law that if a judge is going to disagree with the recommendations of a CAFCASS officer or a guardian he or she must explain clearly why that disagreement is taking place and give reasons for the disagreement. I agree with my Lord that the way the judge expressed herself is not entirely satisfactory but in my view there is no question of the judge saying in effect: “I have no choice but to agree with the Guardian, therefore I do”. What the judge is saying is that “The Guardian has made a recommendation. I agree with the recommendation and I can see no case against it.” So in my judgment there is no misdirection there.

It seems to me the most crucial aspect of the case, and one which continues to concern me, is the judge’s findings in relation to Kristian. The judge found in terms that the mother had rejected Kristian and was alienating the other children against him. Like my Lord I am unimpressed with the argument based on Re: H. It seems to me there was ample material upon which the judge could make the finding that she did in relation to the assault; but in my judgment her much more significant finding is that what was previously a coherent sibling group of four was in grave danger of fracturing. The reason it was in danger of fracturing was because, as the judge found - and she was plainly entitled to find on the evidence - that the mother had alienated Kristian.

How and why had the mother alienated Kristian? Because, as the judge found, she had inappropriately involved him and, indeed, the other children in the relationships which she had attempted to form. The Guardian made it quite clear – and I agree with her - that she had nothing against the mother forming another relationship; but not at the price of fracturing the relationship between the children.

There is a very telling passage in the Guardian’s evidence when the Guardian records the children discussing a holiday they were going to have with the latest man, Philip, and one of the children saying it would not matter if Kristian did not come because “Reilly and Fabian have a new brother now. They have Tom”, Tom being the son of the man Philip involved. The judge’s conclusion, following the Guardian, was that this information could only have come from the mother and, as I said a moment ago, the fact that a coherent and very important sibling group of four who needed each other’s comfort and resources in what has been a very acrimonious breakdown between their parents has been fractured in this way is, in my judgment, highly significant. Speaking for myself, I would add that I have found it most dispiriting that even today Ms Meyer was instructed to advance the argument that Kristian had not been entirely truthful or may not have been entirely truthful in what he had said. That, I regret to say, demonstrated to my mind that even now the mother does not appear to appreciate the harm that she has caused by her conduct in relation to Kristian .

So when I come to look at Ms Meyer’s able criticisms of the judge and the three bullet points she makes, I have nonetheless reached the clear view, having listened carefully to her argument and now having read the entirety of the evidence from the Guardian, that the points she makes, whilst having some forensic force, fall away in the light of the judge’s overall conclusion in paragraph 43 which, as I say, in my judgment was a conclusion she was entitled to reach on the evidence.

For those reasons, in addition to those given by my Lord, I too would grant permission but dismiss this appeal.

I agree with the judgments of both my Lords.