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B-M (Children) [2009] EWCA Civ 205

Application, by father, for permission to appeal care orders and other orders, partly on the grounds that the children should be placed with parents of a similar cultural background. Application refused.

The applicant’s three children had been removed after a fire at the family home. The mother was found to have caused the fire, for which she was jailed for 5 years. This was set against a background of a close knit family where one of the mother’s brothers had been found guilty of murdering one of his children a few years before and that the mother of that child had been subsequently forced to move several times for her own protection. The father at first had contact but later this was refused on application by the local authority as he was found to have been trying to locate the foster parents’ home. That finding was made at a hearing that was listed as final but acted as another fact finding inquiry.

In this application, the father argued broadly that either: i) he should be the carer; ii) if that was not possible the children should placed with carers who more closely matched his cultural background and iii) the trial judge did not have adequate information to make final orders. In this judgment Wall LJ reviews the factual matrix and the relevant judgments. He notes that: i) there is no dispute as to whether the threshold criteria were reached; ii) the judge was fully entitled to give priority to the physical safety of the children and; iii) that he was entitled to agree with the cultural expert’s view that placing the children with an Asian family would place them at greater risk. Having refused the application, though expressing some sympathy for the applicant, Wall LJ adds a postscript concerning “the wholly inappropriate oxymoron “honour killings”” which permeated the background to this case, stating at para 118-119

"The message from this case, which must be sent out load and clear, is that  this court applies a tolerant  and human rights based  rule of law: one which, under the  Act of 1989 regards parents as equals and the welfare of the child as paramount.

That is the law of England, and that is the law which applies in this case.  Arson, domestic violence and potential revenge likely to result in abduction or death are criminal acts which will be treated as such. "

A judicial statement concerning this case is available on the Judiciary website
_________

Neutral Citation Number: [2009] EWCA Civ 205
Case No: B4/2008/2681
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM His Honour Judge Walsh sitting as a judge
of the Family Division of the High Court in the
Leeds District Registry on 23 October 2008.


Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 16/03/2009
Before :

LORD JUSTICE LAWS
LORD JUSTICE WALL
and
LORD JUSTICE LAWRENCE COLLINS
- - - - - - - - - - - - - - - - - - - - -
Between :

AM (Appellant) 

- and - 

Local Authority (1st Respondent)
The Children’s Guardian (2nd Respondent) 

B-M (Children) 

- - - - - - - - - - - - - - - - - - - - -
Janet Bazley QC and Aelred Hookway (instructed by Petherbridge Bassra - Solicitors) for the Appellant
Anthony Hayden QC  (instructed by The Local Authority) for the 1st Respondent
Clare Garnham (instructed by Lumb and McGill - Solicitors) for the 2nd Respondent

Hearing date: 20th February 2009
- - - - - - - - - - - - - - - - - - - - -
Judgment

Lord Justice Wall:
Introduction
1. In this case, a father of three children seeks permission to appeal against care and other orders made by His Honour Judge Walsh sitting as a judge of the Family Division of the High Court in the Leeds District Registry on 23 October 2008. We heard oral argument on 20 February 2009 from leading counsel instructed on behalf of the father and on behalf of the local authority, together with submissions from junior counsel instructed on behalf of the children’s guardian. We then took the highly unusual step of reserving judgment.

2. Before going into the detail of the case, I would like to make a number of preliminary points. The first is that, in my judgment, this application raises issues of considerable public importance. I would, therefore, speaking for myself, propose that although judgments on permission applications are not normally reported, we should give permission for our judgments in this application to be reported by the law reporters should they wish to do so. The judgments will, of course, in any event be in the public domain, and available to the media in print and on the internet in the normal way.

3. Secondly, we have imposed reporting restrictions. The judge decided this case on the basis that any identification of the children concerned ran the risk of them suffering serious physical harm.  In my judgment, that includes abduction and even death. The case thus demonstrates graphically the tension between the need for informed public debate about the issues raised by the case and the need for strict anonymity to protect both the father of the children and the children themselves.

4. This judgment will thus be written anonymously. The father will from this point on be referred to either as “the applicant” or “the father” throughout. The other participants will be identified by their roles - for example, the children’s mother will be called “the mother”, and other members of her family will be designated by reference to the relationship they bear to her. Likewise, I propose to refer to the children as, respectively, A, B and C. These are not their true initials. The experts will be identified according to the area of their expertise.

5. The only persons and places to be identified by name in the judgment will be the judge, the court in which he was sitting, and counsel. However, it is important to an understanding of the case to note that the parents are both Muslims and that both the paternal and the maternal families originate from Pakistan and are members of the Pathan community.

6. I should add, for completeness, that the mother neither attended nor was represented on the application. The reasons for this will become apparent. There was, however, a position statement from her lawyers, in which she supported the father’s application.

The facts in outline
7. I propose to take these largely from the helpful skeleton argument prepared by leading and junior counsel for the local authority, Mr Anthony Hayden QC and Ms Paula Tyler.

8. The applicant was born in December 1967 and is now 41. The mother was born in April 1977 and is now rising 32. Child A is a girl born in December 1997. She is now 11. Child B is a boy born in November 1999, He is now 9 and Child C, also a boy, was born in January 2004. He is now 5. Their parents are first cousins.

9. The children’s maternal grandmother is dead.  The head of the family is the children’s maternal grandfather (from now on “the grandfather”). The mother is the eldest daughter of seven children, who include at least two brothers whom I shall call brother 1 and brother 2. The mother and her siblings were all brought up in the United Kingdom. The judge described the mother’s family in his first judgment as “close knit” and living “within easy reach of each other”. The mother, as the oldest daughter, occupies a position of some importance in the family, particularly as her own mother is dead.

10. Brother 1 contracted a second marriage. I shall describe his wife as “the intervener”, since she intervened in the proceedings and is so described by the judge.  The intervener was brought up in a small village in Pakistan, has never been to school, and could neither read nor write.  She came to England in January 2003 following her marriage to brother 1 in Pakistan in November 2000. By then she was already pregnant with their first child. She does not, however, have leave to remain in the United Kingdom and her immigration status is, to say the least, doubtful.

11. Brother 1 and the intervener had a daughter, who was born in August 2001. On 13 November 2003, that daughter, then aged 27 months, was admitted to hospital. She was unconscious and had sustained multiple injuries. She died on 15 November 2003.

12. Brother 1 and the intervener were both arrested, charged and remained in custody until their trial. The intervener was pregnant with her second child at the time of her arrest. On 18 May, 2004, brother 1 was convicted of the murder of his daughter. The intervener had been charged with neglect, but was acquitted. On her release from custody she returned to live with the mother’s family.

13. In late 2004 the intervener gave birth to a son. His name had been placed on the child protection register pre-birth. The local authority undertook an assessment of the situation of the intervener and the child which was completed in August 2004. During the course of that assessment the social worker encountered significant difficulty in meeting with the intervener alone.

14. Between August 2004 and May 2005 social workers continued to visit the intervener and her son, but were generally unable to see her without members of the family being present. The grandfather (who is also, of course, the maternal grandfather of children A. B and C) would not allow the intervener to attend the local family centre. Brother 1’s son’s name remained on the child protection register. During this time members of the mother’s family were obstructive in relation to the pursuit of the intervener’s immigration application.

15. On 14 May 2005, the intervener fled the family home with assistance from the police and social services. She made allegations of ill treatment by the family and was helped, by the police, to find safe accommodation for herself and her son outside the area.

16. The following day two men were seen outside the place of safety to which the intervener and her son had been re-located. They were asking for the intervener. On 17 May 2005, a second brother of the mother (hereinafter brother 2) telephoned social services asking about contact with the intervener. Brother 2 subsequently telephoned the social worker on her direct line. This number is not one which is given to members of the public. How he obtained the number is not known.

17. As a result of concerns for her safety, the intervener was moved to another secret location. An anonymous letter was received by the local authority on 20 May 2005. The letter raised concerns as to the intervener’s knowledge of how their daughter was injured. The social worker visited the intervener several days later in order to discuss the letter. The intervener was concerned that the family would take her son from her; that they would tell lies about her and that they would track her down and kill her. They would not allow her to “disgrace” the family and get away with it.

18. Further letters were received by the local authority and the family between June and September 2005. It was alleged by the family that the intervener was responsible for some of them, even though she was, of course, illiterate.  Some of the letters contained threats to other family members, including threats that their ‘kids will not be with (them) long’. Brother 1 received a letter purporting to be from the intervener in which the writer admitted to harassment and threats to the family. The intervener’s family in Pakistan received strange phone calls, including one in which it was said that the family was aware of the intervener’s location.

19. On 7 July 2005 the mother alleged that the intervener had set fire to clothing on the mother ’s washing line. On 11 July 2005, the mother alleged that the intervener had tried to entice her children from her home. On 6 August 2005 the mother alleged that the intervener had left chocolate coated paracetamol tablets in the mother’s garden for her children.  It is right to say that the police were sceptical about this allegation at the time, as CCTV footage appeared to eliminate the intervener.

20. On 31 August 2005 the intervener was moved to yet another ‘safe’ location. On a number of occasions the mother asked the police for details of the intervener’s whereabouts. On 9 September 2005 the intervener was moved yet again as she was concerned that she may have been recognised by a cousin whilst in the street.

21. On 24 September 2005, there was a fire at the home of the mother and the applicant. The mother was at home with Child B (then aged 5) and Child C (aged just under 2). Child A was staying overnight with the grandfather, and the applicant was at work. The mother alleged that the intervener and another person entered her home in burkhas, cut the mother’s hands and neck with a knife and poured white spirit onto Child B’s clothes before setting fire to clothing at the bottom of the stairs. The mother said that she joined the children upstairs before the fire was started. The mother called the emergency services and the children were removed through an upstairs window by fire fighters. Brother 2 arrived on the scene suspiciously quickly.

22. On 27 September 2005, the mother contacted the social worker to ask whether she was aware of the fire. She also appeared to be seeking information as to the intervener’s whereabouts. On the same day a medical report was received in respect of the injuries to the mother. It concluded that they were typical of self inflicted injuries.

23. On 28 September 2005, the mother was arrested, interviewed and bailed. On 30 September 2005, the local authority issued a ‘without notice’ emergency protection order application. The children A, B and C were removed and placed with foster carers. Child A and Child B were placed with Mr and Mrs X and Child C with Muslim carers. However, given concerns about the proximity of the home of the mother’s family in Pakistan to that of the carers’ family, Child C was very quickly moved to join his brother and sister. All three children have remained in that placement ever since.

24. On 3 October 2005, care order applications were issued in respect of Child A, Child B and Child C. Interim care orders were made on 5 October 2005. The case was transferred to the county court and on 16 November 2005 to the High Court.

25. The care proceedings came first before His Honour Judge Walsh In early 2006 for a ‘finding of fact’ hearing in respect of the threshold criteria generally and of the fire at the home of the mother and the applicant in particular.  The judge gave judgment on 3 April 2006. Significant findings were made against the mother and her family but not against the applicant. The findings the judge made are set out at paragraphs 49 to 66 below.

26. The parents had regular, supervised contact with the children at a contact centre. In September 2006 they moved house to a neighbouring town. The mother then entered a plea of guilty to ‘arson being reckless as to whether life was endangered’ and on 15 January 2007 was sentenced to 5 years imprisonment. We were told that her current anticipated release date is July 2009.

27. The local authority undertook an assessment of the applicant as carer for the children, findings having been made that he was not involved in the fire, and that he did not have any knowledge of its planning. On 22 February 2007, however, he was seen in the vicinity of the family centre some time after the end of contact. He was also seen by the foster father, Mr X, getting into a car with a number of other Asian men, and being driven in the area.

28. What had thus been intended to be the final hearing in March 2007 was utilised as a further fact finding hearing, this time relating to the applicant’s presence in the area and whether he was (either knowingly or unwittingly) involved in an attempt to locate the children’s foster placement. The court’s findings are set out in the judgment dated 13 April 2007, and are set out in paragraphs 69 to 74 below.

29. As a result of findings made on 13 April 2007 and the perceived impossibility of safely facilitating contact with the parents - that is to say to the mother in prison and to the applicant at a family centre - the local authority applied for permission to refuse contact to the parents. This application was heard by the judge on 12 June 2007. Permission to refuse contact was granted. In the event, the mother’s final contact had taken place during the February half term of 2007, and the applicant’s at Easter 2007. The parents have not seen the children since then.

30. Following the judgment of 13 April 2007, it was felt unsafe for Mr and Mrs X, the foster carers for children A. B and C to remain in their home with the children, and they moved to temporary accommodation. This was the first of a number of moves for Mr and Mrs X and the children, prior to them relocating to what is proposed to be their permanent home, in late 2008.

The case for the local authority
31. The local authority acknowledged both before the judge and in this court that the placement of children A, B and C with Mr and Mrs X (who are a white English non-Muslim couple) is culturally and religiously inappropriate.  Its case before the judge, however, was that the physical safety of the children was paramount, and that were they placed with the applicant or with culturally and religiously appropriate foster carers the likelihood was, firstly, that their whereabouts would be discovered by the mother’s family and, secondly, that the consequences for the children would be extremely serious. The result could be abduction, serious injury or even death.  The local authority accordingly sought care orders in relation to all three children. Its application was, in its final form, supported by the children’s guardian.

The case for the applicant
32. The applicant’s case was threefold. First of all, he submitted that the children should live with and be cared for by him. If that was not possible, his second position was that the children should be placed with foster carers who were an appropriate cultural and religious match, and that he should have regular contact with them. Thirdly, however, and perhaps most realistically, he submitted in this court that the judge did not have adequate information upon which to make a final decision. What he should have done was to make interim care orders only, with directions for further assessments both of the applicant, of the children themselves and, if they agreed, of Mr and Mrs. X. Only when that had been done could the court properly decide what was in the best long term interests of the children.

The nature of the proceedings and their outcome
33. As will be apparent from the facts which have already been outlined, this is not a case on which there is any argument about the existence of the threshold criteria under section 31(2) of the Children Act 1989 (the 1989 Act). The applicant acknowledges that the threshold has been crossed. The question for the judge was what was in the best interests of the children, and whether it was better for them for the court to make an order, or no order. Plainly, the latter was not appropriate on the facts of this case: the question, therefore, is: what order should the court have made?

34. The judge decided that he had sufficient information and made final care orders.  He authorised the local authority to refuse contact between the children and their parents.  He refused an application by the local authority to change the children’s names, and he also refused an application by the applicant for a prohibited steps order to prevent the children using any other surname than his.  He imposed an order under section 91(14) of the 1989 Act prohibiting both the mother and the applicant from making any application to the court in relation to the children for a period of three years without the court’s permission and he refused applications by both the mother and the applicant for permission to appeal.

The application for permission to appeal
35. The father has had the good fortune to obtain the services of Miss Janet Bazeley QC both for the bulk of the final hearing and in this court. The result has been that his case has been presented with thoroughness, care, moderation and considerable skill.  The case for the local authority has likewise been presented with thought and moderation by Mr. Anthony Hayden QC.  I am extremely grateful to all the counsel in the case, as well as those instructing them, for the assistance we have received.

36. When I saw the application for permission on paper on 19 December 2008, I commented that, at first blush, it was difficult to see how the judge could be criticised for reaching his conclusion in what on any view was a difficult and troublesome case. I added, however, that the very scale of its difficulty made it suitable to receive the attention of the full court.  In the event, the issues raised by the case have been fully and expertly canvassed by counsel, and in particular, everything which could properly be advanced on the applicant’s behalf has been advanced persuasively and realistically.  For my part, given the seriousness of the issues involved, I welcome the opportunity provided by the fact that we have reserved judgment, to re-read all the material placed before the judge, together with his judgments and transcripts of certain parts of the evidence.

37. Having done so, and having listened carefully to Miss Bazeley’s argument, I have come to the clear conclusion, sympathetic as I am in many respects to the applicant’s position, that his application for permission to appeal must be refused.  However, I feel I owe it to him and to his advisers to spell out in some detail why I have reached that conclusion. Furthermore, as I shall explain at the end of this judgment, the underlying factual matrix of the case requires this court, in my judgment, to confront head on sordid criminal behaviour which has been identified by the wholly inappropriate oxymoron “honour killings”.

The powers and function of this court
38. Before proceeding any further, however, I think it necessary to set out the powers and function of the court on the present application as clearly and simply as I can. I do not do this, of course, for the benefit of the lawyers, but to explain the position to the applicant, and to any potential litigants in person or pressure groups who may take this judgment from the internet.

39. With the exception of appeals involving committal to prison for alleged breaches of court orders, secure accommodation orders under section 25 of the 1989 Act (both of which involve the liberty of the subject) and refusals to grant habeas corpus (now obsolete in family proceedings), all civil and family appeals to this court require either its permission or the permission of the court of first instance:- see rule 52.3 of the Civil Procedure Rules 1998 (CPR). Pursuant to CPR 52.3(6) permission to appeal may be given only where –

(a) the court considers that the appeal would have a real prospect of success; or
(b)  there is some other compelling reason why the appeal should be heard.

40. CPR rule 52.3, however does not tell the litigant how this court goes about deciding whether or not the appeal would have a real prospect of success. That has been decided by case law and practice.

41. When considering applications for permission to appeal in family cases, this court is concerned with whether or not an applicant has an arguable case for saying that the decision of the court below was plainly wrong.  However, in order to demonstrate an arguable case, the applicant has to show that (arguably) the judge has either made an error of law, or that he or she has exercised his or her judicial discretion in such a way as to render this decision plainly wrong.  The way lawyers describe this is to ask whether or not the judge has exercised judicial discretion in a manner which is outside the area of reasonable disagreement.

42. The phrase “reasonable disagreement” derives from a famous judgment in this court by Asquith LJ, as he then was, in Bellenden (Formerly Sattherthwaite) v Satterthwaite [1948] 1 All ER 143 in which he said:-
It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.’

43. This point was taken up and reinforced by the decision of the House of Lords in the case of G v G [1985] 1 WLR 647, in which this was said:-

The reason for the limited role of the Court of Appeal in custody cases is not that appeals in such cases are subject to any special rules, but that there are often two or more possible decisions, any one of which might reasonably be thought to be the best, and any one of which therefore a judge may make without being held to be wrong. In such cases, therefore, the judge has a discretion and they are cases to which the observations of Asquith LJ, as he then was, in Bellenden (Formerly Sattherthwaite) v Satterthwaite [1948] 1 All ER 343 apply.

44. These decisions are, of course, binding on us. The critical point is that this court is a court of review.  It does not find facts. It does not usually hear oral evidence and see witnesses.  Had I been sitting to hear the case at first instance, it is possible that I might have reached a different decision. That, however, is not the test. As Cumming-Bruce LJ put it in Clarke-Hunt v Newcombe  (1983) 4 FLR 482 and 486 (also cited with approval in G v G):

"There was not really a right solution; there were two alternative wrong solutions. The problem of the judge was to appreciate the factors pointing in each direction and to decide which of the two bad solutions was the least dangerous, having regard to the long-term interests of the children, and so he decided the matter. Whether I would have decided it the same way if I had been in the position of the trial judge I do not know. I might have taken the same course as the judge and I might not, but I was never in that situation. I am sitting in the Court of Appeal deciding a quite different question: has it been shown that the judge to whom Parliament has confided the exercise of discretion, plainly got the wrong answer? I emphasize the word “Plainly”. In spite of the efforts of [counsel] the answer to that question clearly must be that the judge has not been shown plainly to have got it wrong."

45. It follows, in my judgment, that the powers of this court on an application of this nature are very limited. Is it arguable that the judge made any errors of law? Miss Bazeley does not suggest – nor could she – that the judge has got the law wrong. His directions to himself on the law are immaculate. The question is whether or not he exercised his judicial discretion in a manner which was properly open to him. If he did, that is the end of the matter. This court simply cannot intervene, and will not do so.

46. There is one final point which needs to be made. Judges hearing applications in relation to children have a very wide discretion over what they can and cannot do. As both the House of Lords and Cumming-Bruce LJ pointed out in the citations I have already given, there is rarely a right or correct answer in a child case. Usually the judge is faced with a choice between two or more unsatisfactory solutions.  Nobody pretends – Miss Bazley certainly did not – that there is a single right answer in the present case.  The question for us is whether the judge was entitled to come to the conclusion which he reached, and whether he has given adequate reasons for doing so.  If the able argument advanced to us by Miss Bazley cannot dent either the judge’s conclusions or his reasoning – if he has reached a reasoned conclusion he was entitled to reach - that is the end of the matter, even if the judge’s solution is not one which I or either of my Lords may have imposed.

The grounds of appeal
47. Complaint is made in the grounds of appeal that: -

(1) the judge was wrong to refuse the applicant’s application for an adjournment for a psychological assessment of the children, the applicant and, subject of their consent, of Mr and Mrs X;
(2) the judge failed to conduct a sufficient assessment of the physical risks to the children in each of the three alternative placements he was invited to consider;
(3) the judge either failed to assess, alternatively minimised the degree of emotional harm likely to result to the children in being brought up in a white, non-Muslim household;
(4) the judge was wrong to refuse the applicant’s application for the psychologist to see the children;
(5) the judge failed to conduct a proper assessment of the comparative risks of emotional harm involved in leaving the children where they were or moving them either to their applicant or to a culturally appropriate placement;
(6) the judge had failed to make a proper assessment of the foster parents’ capacity to withstand the pressures of continuing to care for the children in the particular circumstances of the case;
(7) the judge failed to carry out a sufficient balancing exercise between the physical risks to the children in each of the proposed placements and the risk of psychological harm now and in the future. He was wrong to conclude that physical safety trumped all other considerations, and wrong to conclude that the applicant could not keep the children safe;
(8) the judge was wrong to opt for long-term fostering of the children as against them being cared for by their father;
(9)  in the light of the expert evidence, the judge’s decision was premature;
(10) the judge was wrong to approve care plans which terminated contact between the children and their father;
(11) by failing to order further assessments, the judge breached the rights of the applicant and the children under ECHR Article 8; and;
(12) the judge was wrong to refuse the applicant’s application for a prohibited steps order given that the children were likely in practice to use the foster carers’ surname.

48. As Miss Bazley rightly accepts, all 12 complaints go to the exercise of the judge’s discretion. To assess their merits, it is necessary (1) to return to the facts in more detail; (2) to examine the other material placed before the judge; and (3) to go through the judge’s final judgment to see how he dealt with the issues before him.

The findings made in the judge’s first judgment
49. As I have already stated, the first hearing before the judge was “a finding of fact” hearing, designed as a means of testing the evidence to see if the so called “threshold criteria” under section 31 of the 1989 Act were established, and if so, on what basis. The judge’s first judgment was given to the parties in draft on 19 March 2006, and delivered on 3 April 2006. It is, I think, essential to an understanding of the case, although the applicant only plays a very small role in it. It is a long judgment, running to 153 paragraphs over 35 pages. The findings the judge made, however, have never been appealed, and cannot be challenged in this court. Having already set out the essential facts I propose only to summarise the judge’s findings in this judgment, rather than to go through it. Everything in inverted commas, however, comes from the judgment.

50. It needs, however, to be noted that the hearing which led to the judgment of 3 April 2006 itself took an unusual course. On the sixth day of the case, and before the intervener was due to give her evidence, the mother announced through her counsel; (1) that she did not require any further evidence to be called by the local authority; (2) that she would not be giving evidence herself; and (3) that she would not be calling any evidence from members of her family. As the judge put it: “she was prepared to submit to judgment without admission”.

51. The judge, I should say, was punctilious in ensuring that she had been properly advised, and himself explained the effect of section 98(2) of the 1989 Act to her. He also warned her that if she failed to give evidence, he might draw adverse inferences against her. Counsel on her behalf acknowledged that the positive case he had put in cross-examination (which had not been accepted) “fell away”.

52. The mother thus conceded the threshold criteria under section 31(2) of the 1989 Act. The applicant’s case was that he did not know what was going on, but that he ought to have done, and that the threshold criteria were also satisfied in relation to him on the basis that he had failed to protect the children. The judge acquitted him of being part of the conspiracy in which he found the members of the mother’s family to be engaged.

53. The judge, accordingly, found the facts to be as follows. The intervener came to England from Pakistan after her marriage to brother 1 in Pakistan. She had had no education and was illiterate.  Whilst living in Pakistan she was kept an effective prisoner in her family’s home. Her role in life was destined to be that of a wife in an arranged marriage.

54. The intervener and her infant daughter came to the United Kingdom in January 2003. The mother’s family deliberately did not progress her application for indefinite leave to remain. The intervener lived with her husband in the grandfather’s house. She was “by reason of the control exercised upon her and her own limitations of language and culture virtually under house arrest”. She was largely confined to the house. She never went out on her own. She was not accustomed to using money, and was not in receipt of any benefits. She appears to have had only one spare set of clothes, which did not fit and which were “hand me downs”. She spoke no English, and indeed had no knowledge of the name of the city in which she was living. She had no contact with members of her own family, some of whom lived in the United Kingdom.

55. Brother 1’s motivation for murdering his infant daughter is not known. All we learn from the papers is that he pleaded not guilty, and was convicted by the jury in May 2004 after a trial lasting some two weeks. The injuries suffered by his daughter were horrific: she had some fifty injuries all over her body which were thought to have occurred over a three week period.  She had a bite mark. There were signs consistent with chronic sexual abuse. She had died of serious head injuries.

56. Brother 1, as I have already related, was charged with her murder: the intervener was changed with neglect and cruelty. Both were remanded in custody. The intervener could have had bail had she had an address to go to other than that of the grandfather. She was, as we know, acquitted at her trial and – as she had nowhere else to go - she returned to live in the grandfather’s house.

57. The grandfather’s recorded attitude towards the murder of his grand daughter is significant. He is on record as saying that it was an accident, and the will of God.  He has steadfastly refused to disown or even criticise his son, and has made it clear that, on release, brother 1 will return to live in his house. Brother 1 also expressed his intention to appeal against his conviction, although, so far as I am aware, no appeal has even been mounted.

58. The intervener gave birth to a son in late June 2004. The local social services, properly concerned by the death of the first child, were heavily involved with the second, although their plan throughout was to keep him with his mother if possible. They were, however, concerned about the intervener’s isolation, and the lack of cooperation from the mother’s family.  They had great difficulty in engaging with her on her own.  They were later to learn that the family utilised a device usually used to monitor a baby in a different part of the house to listen in on conversations which the intervener had with the social worker.

59. The intervener “presented a problem for the family” - and all the more so when, on 14 May 2005, she fled from the grandfather’s home with the help of police and social services. She had a chilling story to tell. She showed bruises on her arms and legs inflicted by the mother, and she said that the precipitating incident which had caused her flight was when she had overhead a plot to kill her.  She told of systematic abuse by the family, particularly by the mother who, as the eldest daughter, occupied a position of power within the family as a consequence of the death of her own mother. There is no doubt that, both when she fled and thereafter the intervener was and remains in fear of her life.

60. The family wanted to reclaim the intervener’s son. The intervener was dispensable. She had been disowned by the family. Her flight and the disclosure of her treatment at their hands was seen by the family as being an insult to them. They saw it – and continue to see it - as a disgrace, and have given the intervener a bad name in the community.

61. Thus, since her flight from the grandfather’s home, the intervener has lived in a number of refuges and secret locations. The family has made systematic efforts to find her. Those efforts were described by the judge as “the family’s determination, ingenuity and later desperation” to seek her out. At the date of the hearing before the judge in March and April 2006 she was in her fourth place of refuge.

62. The family’s attitude to the intervener does not, however, end with its physical abuse of her. There has been a concerted effort, particularly by the mother, to blacken her character.  The most serious demonstrations of this conduct are (1) an allegation that she set fire to clothes on the mother’s washing line; (2) that she attempted to entice Child B from the mother’s garden; (3) that she left chocolate paracetamol in the mother’s garden for her children to eat; and (4)  that  on 24 September 2005, she sprayed white spirit on child B’s nightclothes, cut the mother with a knife and set  the fire at the mother’s home.

63. She had done none of these things. The judge exonerated her in relation to these and all the other allegations made against her by the family. The spraying of white spirit onto child B’s nightclothes was done by the mother, who also inflicted injuries on herself and set fire to the house. The assertions by the family that the intervener had committed these acts was a conspiracy against her. The allegations against her were knowingly false.  The mother had also procured child B in particular to tell lies about the intervener. This was “deliberate emotional abuse” of Child B by the mother.

64. The mother’s plea of guilty to arson made clear that it was she who set fire to the house; that it was she who had sprayed her own child’s clothes with white spirit, and that it was she who inflicted injuries on herself in an attempt to criminalise the intervener. The mother had also been the author of the series of letters designed to discredit the intervener, the detail of which it is unnecessary for me to relate.

65. Apart from his findings against the mother, the judge made a number of serious findings against brother 2 and the grandfather. As to the former, he was a “prime mover” within the family and at the forefront of the complaints against the intervener. He had lied; he had prompted the mother; his early presence at the fire and his detailed knowledge of it were “highly suspicious”. As to the latter, I have already identified his attitude to his son’s crime.  The intervener’s flight was “important enough to send (him) off to Pakistan to visit her family”. He was the head of the family and part of the conspiracy.

66. Against this background, it is hardly surprising that, on 30 September 2005 the local authority applied for and obtained emergency protection orders in relation to the three children A, B and C, and equally unsurprising that the judge found the threshold criteria under section 31 of the 1989 Act established.

Where was the father in all this?
67. The judge acquitted the father of playing any part in the conspiracy against the intervener.  His position was “almost outside the family”. However, the father accepted that the children had suffered significant harm, and that he had failed to protect them from it.  The judge thus concluded:-

“However, in any future assessment of the father of the risks involved, the most careful consideration will have to be given, by analogy, to the lengths that the local authority have already had to go in order to protect the intervener and (her son)”.

68. The final paragraph of  the judge’s judgment merits full citation: -

“153. At the close of his submissions (counsel for the local authority) was clearly searching for words to attribute to these events in which a parent so involves their children, He eventually chose the word disgraceful. The only criticism I can make of that is that it seems to me inadequate, but then I am in no position to criticise because I myself in considering the enormity of this matter feel I have failed to find appropriate words and it may be better simply to leave the appalling and chilling facts to speak for themselves. However, this conspiracy showed persistence, inventiveness and deviousness on the part of the perpetrators, and from the beginning there was a prophesy that (child B) would come to harm. The mother and any other person involved in the conspiracy must be considered dangerous. They can have no integrity and little respect for family life or the normal boundaries of appropriate and lawful behaviour. How anyone could so use their own children in this way would, were it not for the facts I have found here, simply beggar belief.”

Against this background, it is hardly surprising that the mother is ruled out as a carer for her children.

The facts found by the judge in his second judgment dated 13 April 2007
69. By the time the judge came to give his second judgment, the role of the intervener in the instant case had come to an end.  As I have already stated, and as the judge himself said, the judgment of 13 April 2007 was to have concluded the final hearing “but on any view the case is not ready for disposal given its many unusual features”.

70. The “unusual feature” on which the judge concentrated in this judgment related to events on 22 February 2007.  Once again, I remind myself that there has been no appeal against this judgment, and that the facts found by the judge cannot be – and are not – challenged. The question for the judge was whether or not the father had been involved in an attempt to uncover the whereabouts of the placement of children A, B and C.

71. In the light of the findings made in the first judgment, elaborate precautions had been taken by the local authority to ensure that the children’s whereabouts were not discovered as a consequence of the father’s contact, which he enjoyed at a contact centre to which the children were brought.

72. In summary, the judge found that the father had been involved in such an attempt, and had, moreover, tried to deceive the court about his actions.  It is to be noted that the evidence against the father depended in large measure upon identification evidence from the foster father, and that the judge gave himself an immaculate R v Turnbull and others [1977] QB 224 direction.

73. Three particular paragraphs from the judge’s long and careful judgment warrant citation. The first is at paragraph 65:-

65. Even on the most favourable construction of the father’s case he is in some difficulty. Aware of the background of this case, and accepting the risk from the maternal family, which he believes includes him, (h)e got into a car with people he did not know in the vicinity of where he had worked out the children must live. He was not even alerted to a possible problem when they declined to let him get out at the roundabout because of heavy traffic. It transpires that these men had criminal connections, maybe a cautious man might reason the sort of people whom the maternal family may call upon for assistance, yet the father is even now in my (j)udgment unable to explain and articulate the problem beyond accepting that he made a mistake.

74. The second and third are at paragraphs 81 and 82:-

81. This case moves (on) from one self-induced tragedy to another. In reaching this conclusion I am well aware of the far reaching potential consequences for these children and it has weighed heavily with me but it does not and cannot deflect me from the only decision to be made upon the clarity of the evidence presented to me.

82 I would merely wish to add this. It may be that the father has been contacted by the maternal family and was not the leading light in a plan to discover the whereabouts of these children. Any mitigation he may have in that regard is speculation and cannot be afforded to him by reason of his own attempt to deceive the court. Speaking in general terms it does however demonstrate again the lengths someone, be it the father, or others, are prepared to go to gain their will.

The judgments given by the judge on 12 June 2007, 30 October 2007 and 5 February 2008
75. On 12 June 2007, as I have already related, the judge gave the local authority permission to terminate parental contact with all three children up until the final hearing. It is plain from his long and painstaking judgment that the judge did not find this an easy decision. But once again, there is no appeal against it, and the orders made on 12 June 2007 stood until the final hearing

76. The hearing in October 2007 was again intended to be the final disposal of the case, and indeed was the first of a series of hearings which only concluded in October 2008 with the judgment under appeal. The case had to go part hearing October 2007 because, inter alia, the local authority’s care plan was inchoate. In particular, there appeared to be a dispute between the local authority and the foster parents as to the financial terms upon which they would care for the children long term. The judge described the position as “impasse and deadlock”.

77. In his judgment of 5 February 2008, the judge refused an application for the foster parents to be called to give evidence. Once again the judge’s judgment on the point is full and careful, and there was no interlocutory appeal against it.

The care plans for the children
78. The care plans in their final form were not perfected until the final hearing in October 2008. They confirm, however, that the children are to remain with Mr and Mrs X in long term foster care throughout their respective childhoods. Each is in similar terms.  I extract the relevant provisions:-

The material available to the judge
79. For the purposes of the judgment under appeal, the judge had a great deal of written material and oral evidence. Before  looking at it and examining the judge’s  conclusions in relation to it, I propose  list the material which has been made available to us, which is as follows:-

(1) an independent parenting and risk assessment; a comprehensive parenting and risk assessment by an independent social worker instructed by the children’s guardian dated 4 January 2007;
(2) correspondence with, an independent cultural assessment by and a transcript of the oral evidence of a cultural expert.  Her report was completed on 10 January 2007, and she gave evidence to the judge on 31 October 2007. Also in our papers is a transcript of a meeting of professionals attended by the same expert on 28 March 2007;
(3) Four reports from the children’s guardian dated respectively, 10 June 2007, 10 October 2007, 20 November 2007 and 28 March 2008;
(4) the letter of instruction to, a written report from and the oral evidence of a Muslim scholar. His report is dated 7 December 2007, and his oral evidence was given to the judge on 10 December 2007;
(5)  the letter of instructions to, reports from, and transcripts of the oral evidence given by a chartered consultant clinical psychologist instructed by the father, who gave oral evidence to the judge on 3 March 2008 and 9 June 2008;
(6) transcripts of the oral evidence given by a divisional services manager within the social care services of the children and young people’s department of the local authority on 7 December 2007 and 29 April 2008.

80.  I propose to refer to the expert witnesses as “the cultural expert”, “the Muslim scholar” and the “psychologist” respectively. I shall refer to the local authority’s divisional manager as “the divisional manager”. I should also say, in parenthesis, that the psychologist who advised in this case was the same psychologist of whom I was critical in the case of Re A (Family Proceedings; Expert Witness) [2001] 1 FLR 723 when I was sitting at first instance. I did not raise this point with counsel, and I mention it only to make clear that my earlier criticism of the psychologist has played no part in my decision making in the current case, where what matters, of course, is the judge’s assessment of his evidence.

81. There was also a bundle of “confidential material” which had not been seen by the father but which had been made available to his counsel.  This comprised very largely internal documents generated by the local authority.  Finally, there were plainly other statements and documents before the judge with which it has not be thought necessary to burden us for the purposes of this appeal.

The relationship between the foster parents and the local authority
82. There is no doubt that there have, at times, been serious tensions between the foster parents and the local authority, largely arising from the former’s belief that they were not being adequately supported (both emotionally and financially) by the latter. Much of the bundle of confidential material is taken up with the issue, largely based on the family’s anxieties about its future housing and issues of personal safety. The judge was, of course, aware of these tensions, and was critical of the local authority in relation to them. It should be noted that the foster parents have been required to move house something like six times in order to secure the safety of the children from the mother’s extended family. Nobody reading the papers could doubt the foster parents’ commitment to the children, which is plainly quite remarkable.

A summary of the expert evidence
83. It is, I think, both unnecessary and undesirable for me to attempt a detailed précis of the expert / professional evidence. In essence, however, it divided itself as follows. The cultural expert and the children’s guardian supported the local authority’s position that there should be care orders and long term fostering of both children by Mr and Mrs X. The Muslim scholar and the psychologist were, from their different perspectives, supportive of the father’s position: in particular, if the children could not live with their father, they took the view that the children should be placed in a Muslim household.

The final judgment given by the judge
84. The judge was finally able to give his definitive judgment in the case on 10 October 2008, and it is against this judgment that permission to appeal is sought. It is a judgment of some 70 pages running to 279 paragraphs. It is, inevitably, somewhat discursive and unstructured. The judge knew the case inside out, and writes for those with a similar state of knowledge.  He had an enormous amount of material to assess and reproduce.  I confess that, speaking for myself, I understood it better when I re-read it after having been through all the papers.

85. In paragraph 34, I have recited the final care and ancillary orders made by the judge.  I have also recorded the main thrust of Miss Bazeley’s attack by setting out the grounds of appeal in paragraph 47 and by summarising the father’s position in paragraph 32. Miss Bazeley does not – and could not – criticise the judge’s self-directions on the law, which occupy more than four pages of transcript between paragraphs 4 and 11.  As I have already recorded, she rightly accepts that we are in the area of judicial discretion. The question for us, accordingly, is whether or not the judge’s exercise of discretion is arguably outwith the ambit of reasonable disagreement.

86. Critical to the judge’s conclusions as to the overall best interests of the children in my judgment are the following three factors; (1) his assessments of the parties, particularly of the father; (2) his findings of fact, particularly in so far as they relate to safety issues; and (3) his analysis of the expert evidence.

87. As to the first, the judge states in paragraph 3 of the judgment that as at the date of its delivery, it was not clear to him whether the mother would return to live with the father on her release from prison in the summer of 2009.  That, of itself, seems to me significant.  Furthermore, sympathetic as the judge was to the father who (as was common ground) would never deliberately harm his children and who loved them, he could not and did not retreat from his finding that the father had endangered the children by his actions on 22 February 2007. It is also highly significant, in my judgment that even before us the father remained unable fully to accept the judge’s findings about his actions on that day.

88. The judge was, in my judgment, rightly critical of the local authority - as he put it – for managing “to lose the trust and confidence of their own foster carers” (Mr and Mrs X). The consequence had been additional stress suffered by the foster carers, a significant waste of court time and, “most importantly (it) had subjected the parties and the children to delay”. Fortunately, as the judge found, the dispute had been resolved.

89. The first issue which the judge addressed were the physical risks to the children from the mother’s family. The judge’s conclusion, expressed in paragraphs 40 and 41  of his judgment was that:-

40. The risk to these children on the past proven facts before protective measures were put in place is therefore demonstrably at the highest level of life and limb all in the name of this family conception of honour.

41.   The past informs the assessment of quantum of future risk. The mother declined in court to name the brothers concerned, her reasons were that to do so would enhance the risk to her and I regard this as telling  and significant in the recognition of the true level of future risk by the mother herself who which issue I shall return.

90. The judge then turned to criticisms made of the cultural expert. It had been said that she was an inappropriate expert because she had herself fled from a forced marriage, had been perceived to have “dishonoured” her family and had renounced her faith (Sikhism).  Having seen and heard her, the judge profoundly disagreed. He explains why.  He described her as “a national leader and author on the issues of South Asian women and domestic violence, a leader on raising the voice of victims and survivors who experience crimes rooted in the name of honour” He compared her evidence to that of the psychologist:-
53. Others, in particular (the psychologist) have been politically sensitive and coy at presenting this issue as a matter of ingrained cultural normality. He, for example, would require confirmation that all the Pathan community would similarly behave as a precondition and juggled with politically correct attempts at description such as “sub-culture”. In contrast, the (cultural expert) (and for that matter (the Muslim scholar)) was not so constrained, saying:-

Honour codes and crimes are not solely about individual men controlling the lives of individual women. They are about family and community norms, social policing and collective decisions and acts of punishment, these norms can also be applied to male behaviour to the extent that men can be killed and capable of bringing dishonour on the family. (The father) will understand this about the family and the level of risk to him if he does not follow the norm of what is expected of him. Men also play a central role in maintaining the honour of the family through their decision making or lack of it.

91. Like the cultural expert, the judge doubted the mother’s capacity to maintain a separation from her family. She was, moreover, in a “double bind”. Her guilty plea and her silence as to her brothers’ complicity had preserved the family’s “honour”; but the plot had failed. The intervener had escaped, and the mother, who had knowledge of her brothers’ complicity know that breaking away from her family would compound the risk of death or serious physical injury to herself.

92. The judge cited extensively from the cultural expert’s evidence, which he accepted. She was not convinced that the father had the strength totally to disassociate himself from the family. She gave a number of reasons for reaching this conclusion, with which the judge plainly concurred.

93. The judge then turned to the evidence of the Muslim scholar, whose opinion was that the continued placement of the children within a white foster family would “exasperate” the physical risk the children faced.  Amongst the quotations from his evidence which the judge gives,  is the following: -

It is the biggest source of shame that can be brought upon the family and if there is an issue that’s going to keep this contention alive in the lives of these children, vis-a vis the family , that is to keep them in the situation that they are in. You know, if there (is) anything that’s going to exasperate (sic) the risk to them, this is it.

94.  Both the judge and the Muslim scholar are recorded as using the word “exasperate”. This may be a typographical error for “exacerbate”. Either way, the meaning is clear.

95. The Muslim scholar was very critical of the older generation of Muslims, whom he described as the first and second general and as being aged 50+ and 35+ respectively. He described them as “hypocrites”, and later in his evidence as having “a tribal mentality”. Placing the children with the father, on the other hand would, the Muslim scholar thought, “on balance” put the matter to bed: i.e. would be accepted by the family.

96. Much of the Muslim scholar’s evidence was taken up with a discussion of “apostasy” – that is the voluntary rejection of the Muslim faith and way of life by a mature adult.  There was, in this regard, a contradiction which the judge described in the following way:-

First therefore it is clear that within the tolerance and love that is part of this, one of the word’s great religions, these children would not be rejected for simply having to live outside a Muslim family but secondly on (the Muslim scholar’s) general experience and on my understanding as to how this Pathan family has operated in the past this would be a constant source of shame which needed redressing.  Hence I cannot assess the risk here by the standards of ordinary decent Muslims either as to what they would regard as apostasy, or the age of the child who “committed it” or more generally.

97. Thus, according to the Muslim scholar, whilst the family’s behaviour in general, and the murder of the intervener’s first child in particular would be “abhorred” and “condemned” by the younger generation, there was and still is “a prevalent tribal mentality” in the older generation, and such murders were “not uncommon in Afghanistan and those areas where shame has been brought or people kill for precarious reasons that are not uncommon in that generation of people”. This was, accordingly a “hypocritical generation”. The mother of the children was thus seen as “toeing the family line, unfortunately”. The following, chilling exchange between Mr. Hayden and the Muslim scholar is then recorded by the judge:-

Q. Can I just ask you one final question about the concept of apostasy? An apostate, you tell us, is a constant source of curse and embarrassment. It is accepted within Muslim culture, broadly, that it would be legitimate to try and do something about that curse. It would be almost an obligation to do something, would it not?

A. In the, not Muslim culture, in the south Asian community culture generally, but Pathan community particularly, yes.

Q. And how far does that obligation extend?

A. That is the law of the jungle, isn’t it?

Q. And so to be clear about what we are saying in that response, it can go to the ultimate degree, can it: injury or death?

A Well, I think in this case, one has seen that it has gone quite far enough.

Q Injury or death?

A  Yes.

98. The cultural expert’s view was that to place the children with an Asian family might be to put them at greater risk.  Her reasons for that view were two fold. Firstly, the court would have to be clear that the Asian family which took the children did not have links and connections in the community which went back to the mother’s family: secondly, there would be “a stronger sense of duty and obligation by an Asian family” to give in to the pressures exerted by the mother’s family, whose “driving force” would be to recover the children. The judge profoundly disagreed with the proposition that the risk could no longer be assessed because nothing provable had happened between his judgment in February 2008 and the final hearing. As the judge put it:-

In spite of criticism, it seems to me there is not much difference between (the cultural expert) and (the Muslim expert) and indeed the parents on the issue of the quantum of risk generally. Both experts speak of persistence stretching away into the future and both speak of a level of risk which encompasses the ultimate sanction.

99. The judge then records a highly significant remark made by the mother in evidence to him: “when honour kicks in, all other considerations go out of the window”.  She had added: “with honour, you forget everything it will go on for generations. It won’t end and they would try anything”. The judge thus concluded on this part of the case:-

78. It is not a question of being unable to quantify the risk but rather it is impossible to further define the specific manner of reprisal, because the boundaries of any normal civilised behaviour have already long been crossed and in short the family are capable of anything.

Thus the assessment of the quantum of risk in this case:-

84 ranges from abduction, th(r)ough physical and emotional harm to where this matter first started, namely the threat to life itself.

100. Against this background, the judge turned to examine the case advanced on the father’s behalf. He rejected out of hand the proposition that the children could be returned immediately to their father: to do so would be to put the children in exactly the same situation from which they had been removed. He also rejected the other solutions advanced on the father’s behalf.  He accepted that the need for long term therapy for the children, but otherwise rejected the psychologist’s evidence. He made a number of criticisms of that evidence, including a finding that the psychologist did not have “an in-depth appreciation of the matters which had brought the children into care”. He pointed to a number of errors of fact in the psychologist’s evidence. He describes aspects of psychologist’s evidence as “pert” and “border(ing) upon the arrogant”.  In paragraph 127 the judge says:-

127 In my judgment I do not believe that (the psychologist) coming to this matter late, has taken any or any sufficient account of the fact that these children had already had implanted in them a fear of abduction and harm. In what was an assertive and persistent campaign by their mother that (child B) had actually been present and likely saw his uncles(s) involvement the night of the fire and understandably had a fear of what the maternal family might do to him. Instead (the psychologist) chooses to lay the children’s anxieties at the door of the foster parents and their own anxieties whereas the evidence I have is that Mr and Mrs X have tried to make them secure and have tried to put normality back into their lives.

101.  The judge then addresses the issue between the local authority and the foster parents, which I have identified at paragraph 82 above. The judge also disagrees with the psychologist’s evidence on a number of significant issues, including the latter’s apparent belief that  there was an intention to withhold from the children details of their past.  The judge summarises his approach to the psychologist’s evidence in paragraphs 154 et seq. of his judgment:-

154. I regret to say that in spite of his credentials and experience I was generally unimpressed with the evidence of (the psychologist). From starting with one premise – therapy; he moves to another – assessment and delay and in doing so the “factual” basis upon which he relies is either not understood or on my findings wrong.

155. I endorse the submission made by Mr. Hayden that (the psychologist) is an expert over committed to a cultural agenda who had been made in cross examination to confront the child protection issues in the case. Ironically, having done so, we had to go into closed session at one stage because (the psychologist) wished to offer “expert” evidence on an aspect of security.

102. The judge then canvassed the other evidence which he had heard. He was impressed by the social worker who had “significant experience of working in the multi-cultural city”: he praised the commitment of the foster carers, who had suffered extreme disruption to their way of life without wavering in their commitment to the children. He cited extensively from the guardian’s evidence, in particular her conclusion and her reasons for reaching it:-

There are certain things you cannot teach. The things he (the father) does not have are insight, awareness, the vigilance – you can’t teach them. If I thought you could I would have been pressing the local authority many, many months ago to help him achieve that. I honestly believe it is unachievable.

And in cross-examination:-

…. I have agonised over this. I really wanted to place with father if possible…. I wavered because I wanted it to work.  The incident with the car shows he does not have the insight to see the risk. It confirmed the conclusion that I had come to.  You cannot teach that. I wish I could make it right. I wish I could wave a magic wand. I look at the placement - yes there are deficiencies in culture and religion but there is no deficiency in commitment, in love in security. There is no deficiency in priority. These carers are saying clearly that the children are part of our family. Is it right to take away all that love and security to make us feel better about religion and culture?

103. As is clear from this passage, the guardian acknowledged the deficiencies in the care plan, but took the view that the security of the placement was such that as many of the children’s needs as possible would be met.  The children in her view were “crying out for closure and stability”. The judge accepted her evidence, and the evidence of the divisional manager.

104. The judge expressed sympathy for the father. In paragraph 195 of the judgment he said:-

195…… In so many ways I feel very sorry for him. He too is a victim of the fire. As he has been described by others (including his counsel) and with no intention by me to cause any offence he is but a simple man.  He has been wickedly used by others. He faces a number of difficulties some of which relate to him and his personality which no matter what edifice is built up around him by the skill of his legal advisers is nonetheless laid bare to any objective observer after but a short time in the witness box. I have seen him in that venue on two separate occasions.

196. At a very basic level I find that the father is a quiet, likeable but malleable and vulnerable man with an endearing naivety in his dealings with others. The mother agreed that that her family think the father is a man they can walk over.  She also said that the family would brush him aside if they wanted to do something.

105. Finally in relation to the father, the judge reverted to his finding that the father had been untruthful about the events of 22 February 2007 and that he still put forward his actions on that day solely as naivety and negligence. In paragraph 218, the judge thus concluded:-

218 …… When set aside the cultural and religious considerations, I have to agree with the local authority that the issue of physical safety must be paramount.  Whilst the children’s religious and cultural identity would be protected if there we(re) a reunification with the family within the overall balancing exercise I have sadly concluded that this is not an option open to me.

106. The judge also rejected the proposition that the children should be placed in a Muslim family. He did so on three principal grounds. Firstly, this course was opposed by the guardian for all the reasons she had given, which he accepted. Secondly, there was no evidence that any such placement was available. Thirdly, there had been initially a placement of child C with Asian foster parents, a placement which had to be abruptly terminated on safety grounds.

107. The judge then went on to consider other ancillary aspects of the case. It seems to me, however, that once he had reached the conclusions on the principal issue, which I have set out, his remaining orders inevitably follow.

Discussion and conclusions
108. In my judgment, the conclusions reached by the judge are impregnable. Although I have, perhaps unfairly, described the judgment as discursive, the fact remains that the judge has carefully examined every aspect of the father’s case, and has reached conclusions which were manifestly open to him.

109. In my view the judge was fully entitled to give priority in the welfare equation to the physical safety of the children. His rejection of the father’s case (both as to an immediate transfer of residence and a deferred consideration) is plainly within the ambit of the proper exercise of a judicial discretion, as is his rejection of the alternative placement of the children in an alternative Muslim household.

110. Furthermore, the judge was plainly entitled to prefer the evidence of the cultural expert and the guardian to that of the psychologist.  I have, of course, read the psychologist’s reports and evidence with care. In my judgment, the reports read like an argument, not an opinion, and I entirely endorse the criticisms which the judge makes of the psychologist in paragraphs 154, 155 and elsewhere in his judgment.

111. One example in the first report struck me with particular force. The psychologist in describing the foster parents says: “one begins to hypothesise the possibility of clinical paranoia of huge proportions in this case”. It will be recalled that the psychologist had not met either the foster parents or the children, and had, as the judge found, an imperfect understanding of the history of the case. Even leaving aside the fact that the psychologist is not medically qualified,  such a remark, and the language in which it is couched, seem to me quite inconsistent with the psychologist’s duties as an expert witness.  His extreme use of inappropriate language was put to him by Mr Hayden in cross-examination without, it seems to me, any real recognition by the psychologist of the extent to which he had strayed from the path of the expert witness, and the judge at one point was constrained to intervene to rebuke the psychologist for being “pert”, a word which the judge repeats in his judgment.

112. It is the tritest of trite law that experts advise and judges decide. Where there is a conflict of expert opinion, the judge has to decide which evidence he prefers. Provided he explains his reasoning, as Judge Walsh has, the judge cannot, in these circumstances, be criticised for rejecting expert evidence which is in conflict with other expert evidence which he accepts.

113. Having cited extensively from the judgment, it seems to me that further comment is otiose.  No appeal against the judge’s findings and conclusions could possibly succeed. The application by the father for permission to appeal must, accordingly, in my judgment, be dismissed.

Postscript
114. I cannot, however, part with this case, without making two further points. The first is that although the care proceedings are flawed in important respects – particularly the delay, and the fact that, as the judge put it, “the local authority had managed to lose the trust and confidence of their own foster carers in the support that were offered in this unusual, and so far as the local authority were concerned, high profile case” – they nonetheless demonstrate a number of important qualities.

115. Not least amongst these qualities is the fact that a disadvantaged, non-English speaking and in many ways worthy parent has taken the opportunity to challenge the decisions of a local authority in relation to his children, and has been able to call expert evidence to assist him.  Furthermore, that challenge has been skilfully advanced by specialist child lawyers. The father’s case, in my judgment, has been fully aired and expertly conducted. This is as it should be. It has failed on its merits, but the tolerance which is manifested in the English child care jurisprudence has enabled a full range of criticisms to be advance and carefully considered on his behalf.

116. I need, however, to repeat the point which I have made at paragraph 46 above. It needs to be appreciated by litigants that where, as here, a judge wrestles with a very difficult case, and reaches a given conclusion, he or she enjoys a very broad ambit of discretion. In such a case, where a judge reaches a conclusion which he reasonably regards as the better of two imperfect solutions, his or her decision is likely to be upheld unless some palpable error of law or reasoning can be identified.

117. My second point is that the time has surely come to re-think the phrase “honour killings”. It is one thing to mock the concept of honour – as, for example, Shakespeare does through Falstaff in I Henry IV Act V, Scene i. It is quite another matter to distort the word “honour” to describe  what is, in reality, sordid criminal behaviour. I put on one side the murder of  a baby in this case, since brother 1’s motivation for the murder is not known. However,  the remorseless pursuit of the baby’s  mother who, the  judge found, was a woman fleeing from domestic violence; the fact that  the mother of the subject children in this case sprayed the night clothes of one of them with white spirit and set fire to her house in order to implicate the intervener; the fact that the mother will not identify her brothers in the conspiracy for fear of reprisals; the fact that the grandfather  appears to believe that the death of the baby was an accident and the will of God -  these things have nothing to do with any concept of honour known to English law. They are, I repeat, acts of  simply sordid, criminal behaviour and a refusal to acknowledge them as such.  We should, accordingly,  identify them as criminal acts and as nothing else.

118. The Muslim scholar in his evidence did not suggest that such activities can be encompassed within Islam. The most he said was that they formed part of the older generation Pathan culture.   The message from this case, which must be sent out load and clear, is that  this court applies a tolerant  and human rights based  rule of law: one which, under the  Act of 1989 regards parents as equals and the welfare of the child as paramount.

119. That is the law of England, and that is the law which applies in this case.  Arson, domestic violence and potential revenge likely to result in abduction or death are criminal acts which will be treated as such.

120. In this case, the family may wish to reflect on the fact that it has lost  five of its children: one by death, one by the legitimate flight from gender based violence inflicted on  his mother, and three to the care system. None of this, in my judgment, has anything to do with any  concept of “honour” and all of it is manifestly contrary to the best interests of children.

121. For all the reasons I have given, I would refuse permission to appeal.

Lord Justice Lawrence Collins
122. I agree.

Lord Justice Laws
123. 1 also agree.