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M (Children) [2010] EWCA Civ 67

Appeals against finding of fact that a father had stabbed a mother, refusals to to allow permission to appeal, a residence order in favour of the mother and a finding that the threshold criteria under the Children Act 1989 section 31 had not been met. Appeals dismissed.

The background and facts to this appeal are published alongside the judgment giving permission to appeal available on Family Law Week here.  In this appeal, counsel for the father submitted, among other arguments, that i) the judge had reached a speculative conclusion on the finding of fact; ii) he had disregarded the inconsistencies in the mother's account because of her stress, unsupported by the evidence; iii) the father's alleged admissions of guilt were contradicted by telephone logs and transcripts now available to the court; and iv) he had been wrong to grant residence to the mother. The local authority argued that the section 31 threshold had been met.

Thorpe LJ, after reviewing the judgment, the findings and the fresh evidence, rejects all these submissions. On the accuracy of the father's admissions, he notes that the judge was not relying solely on them to reach his conclusion, as the father had also been an implausible witness.  He further notes that "the judgment read as a whole demonstrates how careful and thorough was the Judge in his approach to an extremely complex and finely balanced enquiry".  On the residence order, he observes that the judge was following the guardian's recommendation that the "mother's shortcomings were balanced by developing insight, a crisis management programme and a willingness to seek treatment". Finally he considers the local authority's appeal on the section 31 point. He finds that the judge was justified in concluding that there was no prospect of future harm and that he was entitled to disagree with the guardian without giving reasons because the point was outside the guardian's area of expertise. Wall LJ, in a short note, comments that he had thought about writing a supplementary judgment but had changed his mind as the appeal did not raise any general or important points of law or practice.

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Neutral Citation Number: [2010] EWCA Civ 67
Case No: B4/2009/1462/1564/1712/3012
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
His Honour Judge Bromilow
Bristol County Court  BS07C00997

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 10/02/2010

Before :
THE RIGHT HONOURABLE LORD JUSTICE THORPE
THE RIGHT HONOURABLE LORD JUSTICE WALL
and
THE RIGHT HONOURABLE LORD JUSTICE MOORE-BICK
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Between :
M (Appellant)

- and - 

M (1st Respondent)

- and -

SOUTH GLOUCESTERSHIRE COUNCIL (2nd Respondent)

-and-

FM and CM
[BY THEIR GUARDIAN] 
(3rd & 4th Respondent)

(Transcript of the Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)

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Robin Tolson QC and Caroline Elford (instructed by Messrs Ward Solicitors) for the Appellant
Charles  Hyde QC and Anna Midgley (instructed by Messrs Bobbets Mackan) for the 1st Respondent
Richard Tyson and Elisabeth Hudson (instructed by Legal & Democratic Services, South Gloucestershire Council) for the 2nd Respondent
Paul Storey QC and Tacey Cronin (instructed by Messrs Kirby Simcox) for the 3rd and 4th Respondent
Hearing dates: 16th, 17th and 18th December 2009
- - - - - - - - - - - - - -

Judgment
As Approved by the Court

Crown copyright©

LORD JUSTICE THORPE : 
1. These appeals concern a well to do family consisting of mother, father and two children.  Their apparently ordered lives were shattered when on 19th October 2007 the mother sustained a serious knife wound to her wrist.  Emergency services were immediately involved and, almost at once, an issue arose as to whether the father had stabbed the mother whilst sleeping or whether the wound was self-inflicted.  Fortunately the children (a girl aged four and a half and a boy aged almost three) were not directly exposed to the event.

2.  The mother issued an application for a residence order and obtained a non-molestation injunction on 24th October.  Fortunately the parents were able to agree a shared residence order which was made on 2nd November.  That order was continued on 30th November when the mother's share was increased by an extra night. 

3. The local authority had obviously been involved and this enlargement of the mother's share led them to issue an application for an interim care order and for the removal of the children to foster care on 10th December.

4. That led to a contested hearing on 14th December.  The father consented to the local authority's application and the orders were made despite the mother's opposition.

5. The consequence has been that these two children have lived with foster parents ever since.  It was to be two years before they were to return to family life.

6. What had become public law proceedings were then prepared with a view to a major hearing in the County Court fixed to commence on 27th November, 13 months after the fateful precipitating event.  The scale and complexity of the litigation was much increased when on 19th September 2008, the father was charged with attempted murder. 

7. In the public law proceeding there was, of course, a dominant factual issue to be resolved: was it a case of attempted murder or a case of self-harm?

8. The hearing that commenced on 27th November was before His Honour Judge Bromilow.  The Judge heard evidence over the course of six days before delivering his judgment on the disputed factual issue on 10th December.  He reached the clear conclusion that the father had stabbed the mother.

9. Unusually, the evidence over the course of the preceding six days had not been limited to the disputed factual issues.  It was essentially a hybrid hearing to tackle both what had happened and what should happen in the future. So the evidence continued until 16th December when it was adjourned to a part-heard hearing on 23rd February 2009. 

10. This first phase of the public law final hearing produced the first application for permission to appeal filed by the father.

11. This application was additionally for a stay.  It was filed on 12th December and immediately referred to Wilson LJ.  He refused the stay and adjourned the application for permission.  For reasons not clear to me, the permission application was not then considered on paper until the 10th August 2009 when refused on paper by Lord Justice Hughes.  When an oral hearing was requested it was listed together with other applications on 21st August before Ward LJ and Waller LJ.

12. When the trial resumed in the County Court on 23rd February, it made little progress due to the fact that leading counsel were not available on the following days.  At the resumption, on 27th February the father applied to Judge Bromilow to reopen the fact finding hearing in reliance on certain new materials. 

13. That application was refused by the Judge on 4th March.

14. Mr Tolson QC, who has throughout represented the father, informs us that an appellant's notice challenging the refusal to reopen was filed shortly thereafter but never issued. Then a repeat appellants notice was issued on 21st July 2009 and on 10th August, adjourned for oral hearing on 21st August by Hughes LJ. 

15. In April there were two further days of evidence in the County Court. 

16. The father's criminal trial opened in the Crown Court before Cox J on 3rd June and ended with a not guilty verdict on 24th June.

17. The County Court proceedings resumed on 20th July and were concluded on 22nd when the Judge reserved his judgment, subsequently handed down on 5th August.

18. The Judge's order on 20th July dismissed the Local Authority's application on the ground that they had not proved the section 31 threshold crossed.  On that day, the local authority withdrew from the proceedings.

19. By his order of 5th August, the Judge granted residence to the mother with very generous contact to the father.  He specified three weekends out of four and left the division of school holidays for the parties to agree if they could.  In so deciding, the Judge followed the recommendations of the Children's Guardian.

20. This result produced the father's third notice of application, issued on 7th August and adjourned for oral hearing on 21st August 2009 by Hughes LJ.

21. On the 21st August the court granted all three of the father's applications for permission.  That hearing was on notice and the local authority indicated an intention to challenge the Judge's ruling of 20th July, the reasons for which were given in his reserved judgment.  The court put the local authority on terms to ensure no delay and the local authority's respondent's notice was duly filed on 28th August.  The four appeals constituted by the court's order of 21st August were listed to commence on 16th December with a time estimate of 3 days.

22. The conduct of this appeal has not been easy.  At a very late stage, the father's solicitors lodged 7 lever arch files.  The local authority lodged two further lever arch files.  Transcripts came in dribs and drabs immediately before and during the hearing.  The grounds of appeal and skeleton arguments generated by the father's first two notices were not much better than formal.  On 14th December Mr Tolson QC for the father filed a suggested pre-reading list which was so extensive as to be valueless.  It is hard to suppress a sense of irritation that the job of the court has been unnecessarily burdensome as a result of these deficiencies.  This is not a family appeal brought into the list precipitately as a result of some emergency.  All parties knew on 21st August what they had to do. 

23. That said, I will turn to consider the father's first appeal challenging HHJ Bromilow's conclusion that he had viciously assaulted the mother.

24. The Judge's essential conclusion was expressed in paragraphs 27-29 of his judgment as follows:

"27.  I have found many parts of the evidence profoundly troubling.  Mrs M has a history of dishonest behaviour and she has alienated a number of friends.  She has behaved provocatively in front of her husband, notwithstanding the state of their marriage, and she has allowed him to assume a greater role in the care of their young children so that she could indulge herself.  What she says demands caution.  She has given different and inconsistent accounts of what happened.  I must ask myself why has she done this?  Is it because she continues to be an accomplished liar who has been found out after so much questioning or is it because she was so excitable, having woken from her sleep and no one would take her seriously?

28. In my judgment, the early clues in the evidence are the best and by that I mean the behaviour and demeanour of Mr M.  He is apparently a placid and calm man, a caring and responsible father of two young children.  On his own account, he found his wife, the mother of his two children, sitting on her bed with her right arm bleeding.  He says he saw blood on the bedclothes and a knife by her hip.  He said she was on the telephone.  Coming upon this scene, what did he do?  He says he flicked the knife away and waited until his wife handed the telephone to him.  I reject Mr M's account.  I find his explanation for flicking the knife incredible and his attempt to explain the nudging of the bed was a rather futile attempt to cover his tracks.  His deception continued when he failed to tell the police where they could find the knife.  I accept what Mrs M has told me about why she told the emergency services and Mrs X that she had harmed herself.  She was seriously injured, desperate to tell the ambulance service to attend and was prevented from doing so until she agreed to her husband's demands.

29.  Having considered and reflected upon all the evidence that I have heard and read, on a balance of probabilities I have reached the following conclusions.  During the early hours of 19th October 2007, while Mrs M was asleep in her bedroom, Mr M entered her bedroom and, using a Stanley knife, he cut her right wrist with a single use of the blade.  In the moments that followed Mr M did prevent his wife from calling the emergency services and he only permitted her to do so after she had agreed to say that she had harmed herself.  I find that Mrs M was in a state of very great distress and confusion as a result of what had happened.  Her first telephone call to the ambulance service is the most obvious illustration of this and I find that this conversation did take place when Mr M was still in the bedroom.  I find that Mrs M remained in such a state when talking to the ambulance crew and the police in her home.  Once at the hospital, I find that Mrs M's mood swung greatly as she came to realise what had happened to her right wrist, what might be happening to her children, albeit I accept they remained safe and properly cared for, and because of her genuine frustration with the attitude of the police.  I find that Mr M did admit to his involvement during phone calls at 6.27am and at about 3.45pm, calls which were heard by Mrs M and Mr D.  I find that he again admitted it when speaking with Mrs W at her home later that afternoon by uttering the words, 'She drove me to it.'"

25. In relation to these paragraphs, Mr Tolson's bold submission is that the Judge arrived at a speculative conclusion that no reasonable Judge could have reached.  He has preferred the testimony of the mother, with a long history of well documented episodes in which she has displayed florid, histrionic manipulative and deceitful tendencies, to the father, a man of measured and calm reliability.  The Judge has implicitly disregarded the many inconsistencies in the mother's evidence by finding that she was in a state of great stress and confusion, findings that were not substantiated by the majority of the evidence.  Mr Tolson then submits that the Judge's findings as to the father's alleged admissions are contradicted by telephone logs and transcripts that are hardly open to challenge.

26. I reject the majority of Mr Tolson's attack.  Paragraph 28 rests on the foundation of paragraphs 20 and 21 which are as follows:

"20. Mr M began his oral evidence by describing the family arrangements in the months before the incident.  He said that Mrs M was leading the lifestyle of a single person and he was caring for the children.  He knew about G from August 2007 and his wife was spending three to four nights away from the home.  Then it changed to weekends away.  He told me that he remembered the events of 18th and 19th October 2007.  He went into her room to say goodnight.  He was awaked because he thought he heard C crying.  He went into Mrs M's bedroom.  He saw blood on a white quilt cover and he saw her arm.   She was dialling the emergency services.  He was stunned and has only a vague memory of what she was saying.  He just stood there.  He could not understand what she was saying and then she passed him the phone.  He got a towel and then a pillowcase from the airing cupboard following advice from the emergency services.  He did not hear the calls to G.  He saw the knife and flicked it away.  He did not see it again.  Mr M was asked about the conversation that he had with the paramedics and police.  He recalled Mrs M telling a paramedic that she had done this before and he was shocked to hear this.  He did not remember telling the police that she had cut herself on three previous occasions.

21. In a searching cross-examination, Mr Hyde concentrated on the moments when Mr M went into his wife's bedroom and what he had said to the police.  He said that he had heard a cry from her room.  He went in and saw blood.  The light from the en suite bathroom was on.  He just stood there.   He was numb and he did not ask her what had happened.  He could not follow the conversation with the emergency services.  'Standing there like an idiot,' was his own expression.  He was asked about the knife.   He said that he saw it on the bed as soon as he walked into the bedroom and he flicked it towards the bedhead.  It was by her hip.  It was his first reaction and he did not think about the blade.  He did not tell the paramedics and the police where the knife was but he had nudged the position of the bed to show where it was.  When asked about what he told the police about searching for the knife, he could not remember doing this with the paramedics.  Mr M denied tampering with his wife's prescribed drugs and he stood firm about being in the family home when Mrs W visited to collect personal belongings for Mrs M.  I recall that Mr M gave oral evidence without interruption for almost three hours.  Throughout he maintained his denial of responsibility for his wife's injury.  His demeanour remained calm and he told me that he wants to be able to care for his children in the future."

27. These paragraphs demonstrate that it was the father's inability to deal in any satisfactory way with the questions put to him by Mr Charles Hyde QC for the mother that destroyed the Judge's confidence in his account.

28. As to the mother's fallibility, it is plain from paragraph 27 that the Judge took that fully into account.

29.   Undoubtedly, Mr Tolson's best point is as to the Judge's finding that in the course of a telephone conversation, initiated by the mother, at about 3.45pm on the afternoon of 19th October, the father admitted his guilt, an admission heard by her associate Mr D via the telephone loudspeaker. 

30. The Judge found as he did since the telephone records demonstrated that the call could not have been made at about 5.25 in the afternoon. Rather than rejecting Mr D's evidence, once demonstrated that he was wrong on the timing, the Judge had sought to accept his evidence by going for the earlier afternoon.

31. All the evidence available now, some of it culled from the criminal trial, demonstrates that the incident described by Mr D during the course of that afternoon in the hospital, simply could not be relied upon.  Mr Hyde, for the mother, wisely conceded as much at the outset of his submissions. 

32. However this concession does not result in Mr Tolson's success on his first appeal.  First this was not the only admission found by the Judge.  There had been an admission to the mother and Mr D at 6.27am earlier on the same day.  At about 6pm on that day there was a further admission by the husband to the mother's friend, Mrs W as the Judge found.

33. Furthermore, the Judge's conclusion did not rest simply on the admissions.  As I have already demonstrated the Judge condemned the father as well for the implausibility of his evidence in chief and in cross examination.

34. Mr Tolson QC makes complaint of the way the Judge dealt with DNA analysis of the weapon in paragraph 25 of his judgment and of the Judge's assessment of the evidence relating to a t-shirt which the mother was wearing at the time of the assault.  I see no substance in those criticisms. 

35. Mr Tolson concluded his submissions with general criticisms; first that the Judge had honed in on the events of 19th October and had given no or no sufficient regard to the pattern of the mother's bizarre behaviour preceding the 19th October, which should have given him the key to understanding what had happened in the home on 19th. 

36. The second criticism was that the Judge had compartmentalised those parts of the mother's case which he had rejected.  She had suggested that the father had been tampering with her medication in the days preceding the assault with the intention and effect of rendering her drowsy and confused.  The Judge had rejected that allegation without going on to consider its consequential impact on his primary finding.

37. I see no force in those criticisms.  The judgment read as a whole demonstrates how careful and thorough was the Judge in his approach to an extremely complex and finely balanced enquiry.

38. As I have recorded Mr Tolson's first application to re-open the judgment of 10th December 2008 was issued on 24th February.  All that supported it was a skeleton argument advancing three strands of new material.

39. The first strand advanced was transcripts of calls made to the emergency services.  At the trial the log had been available but not the transcripts.  They had been obtained by the solicitors acting for the father in the criminal trial.  The transcripts themselves were not put before the Judge.  Mr Tolson's junior, Ms Elford, had listened to the tape and had summarised the content in her skeleton argument.

40. The second new material advanced was the report of Dr Parsons who had carried out an assessment of the risk of future violence from the father.

41. The third strand were three statements made by the mother on 13th November, 25th November and 15th December 2008.  In these three statements, the mother had made florid accusations: the father had been tampering with her medication for three and a half years, the father had financial motive for murder, the father had broken into the house to plant the t-shirt in her wardrobe and otherwise to interfere with her property after separation.

42. The Judge considered this application carefully and dismissed it on the 4th March stating his reasons clearly in paragraphs 15 to 17 of his judgment.

43. The notice of appeal is brief in its grounds and its skeleton argues that the Judge was mistaken in his evaluation of the material and applied the wrong test, assuming that what was sought was a retrial of all issues.

44. In his oral submissions, Mr Tolson showed us the transcripts themselves and demonstrated that they plainly undermined the Judge's finding that there had been an amplified telephone conversation between mother and father at 3.45pm on 19th October.  He further submitted that the content of the mother's call to the police added weight to his submission that, had there been an admission by the father at 6.27, it would have been reported when she spoke to the police only 37 minutes later. 

45. As to the three statements, further florid and false allegations required a reevaluation of the mother's credibility.

46. In my judgment His Honour Judge Bromilow was plainly right to reject the application of the 24th February.  It was fundamentally lacking in substance.  At its highest it only undermined a finding which was but one of many which in isolation did not require any reinvestigation of the causation of the injury.

47. The father's third notice of appeal dated 7th August challenges both the judgment of 20th July and that of 5th August.  I will deal first with the judgment of 20th July.

48. The judgment dismissed Mr Tolson's second application to reopen the judgment of 10th December 2008.  The application was issued on 10th July and supported by a skeleton dated 15th July.  Nothing else supported the application to the Judge.  Again this was an application founded on fresh material.  There were three elements, namely the report of Professor Whitwell, a letter from Dr Anscombe and a note of the evidence of Mr D at the criminal trial.

49. To understand this application it is necessary to explain the forensic evidence before the Judge when he investigated the causation of the wound.  Two forensic experts gave their opinion, Dr Anscombe and Dr Payne-James.  From an examination of the wound itself, Dr Anscombe had not felt able to clearly prefer assault to self-infliction.  Dr Payne-James, although guarded in his written reports, had said that the wound was more likely to be caused by assault but that self-infliction could not be excluded.  In his oral evidence, in answer to Mr Hyde, he said that he had seen several thousand cases of self-harm and, if this were a case of self-harm, it would be the first time that he had seen a single deep wound.  It is to be noted that Dr Anscombe was not asked to attend the trial.  Professor Whitwell's evidence in the criminal proceedings concurred with that of Dr Anscombe.  The letter from Dr Anscombe upon which the application was partly founded added nothing. 

50. In his oral submissions Mr Tolson conceded that the forensic evidence did not justify reopening if it were not an essential ingredient in the Judge's reasoning process.

51.  As to the evidence of Mr D at the criminal trial, Mr Tolson conceded that he had said he could not be sure that the 6.27 telephone call amounted to an admission.  Finally Mr Tolson endeavoured to suggest that a caution given to the mother for shoplifting on 27th April 2008 called for a reassessment of her credibility.

52. In my judgment none of Mr Tolson's arguments is of the least avail.  Nothing in Professor Witwell's evidence began to justify revisiting that area which in any event was not anywhere near essential to the Judge's conclusion.  Mr D's evidence at trial was of similarly scant significance and the mother's caution reflected on her propensity rather than her credibility.

53. That limb of the father's third appeal clearly fails.

54. I come now to the second limb of the father's third appeal.  Mr Tolson's broad contention was that the Judge was plainly wrong in granting the residence order to the mother rather than the father.  Before considering that submission and its various satellite submissions, it is necessary to identify the extent of the Judge's task as the case concluded between 20th and 22nd July.

55. It was common ground that the children should not be in foster care but should be returned home.  The Judge concluded that there was no continuing role for the local authority, a judgment to which I will return.  Once the case reverted within private law bounds, the only remaining issue was how the children's time should be shared between the two independent homes.  It was common ground that a substantial proportion of the children's time should be spent in each home.  Thus the ultimate decision lay between a residence order to mother with generous contact order to father, a residence order to father with generous contact to mother and a shared residence order.  These are fine shades of distinction and it is difficult to see how the Judge's choice between the three alternatives could be said to fall outside the generous ambit of his discretion.  That is particularly so when the Judge adopted the option urged by the guardian, temperately expressed in her final report of 13th July but expressed in her oral evidence to be overwhelming. 

56. Despite the difficulties in his path Mr Tolson submitted that the Judge had failed to pursue an investigation into the extent of the mother's vulnerability.

57. The jointly instructed adult physiatrist was Dr Fear.  In his written report of October 2008, he had pointed to the mother's recurrent depressive illness and also features that indicated at least one personality disorder.  However, he made it plain that he was not prepared to make a formal diagnosis until the court made findings of fact.  He said that he would need to know that the court had accepted as accurate descriptions of the mother's conduct deposed to by five witnesses in the case.  Thus the argument run by Mr Tolson was that the Judge had failed to make the clear finding required by Dr Fear with a result that the Doctor was unable to clarify and then diagnose.  This was crucial because Dr Fear expressed the opinion that if the mother were suffering from a personality disorder then she should not be entrusted with the care of the children.  Mr Tolson submitted that this fundamental judicial error clearly emerges from paragraphs 73 and 74 of the judgment of 5th August as follows:

"73. Mrs M's characteristics as well as her personality and psychiatric health have been the subject of exhausting and searching inquiry. They are central features to this case.  In respect of what I shall term her behaviour and conduct as seen through the eyes of observations of many witnesses I make these findings.  Mrs M is a forceful individual.  She likes to be in control.  Mrs M has lied in an attempt to secure financial advantage.  This has included exaggerating her physical symptoms.  She has been dishonest in her dealings with social services and she has been dishonest by reason of theft, most recently on 27th April, in circumstances which she is unable to explain.  Mrs M has alienated people who have been her friends and sources of support.  I have previously accepted the evidence of Mr D and Mrs W.  I find that she has been manipulative in an effort to secure personal advantage, placing her own needs ahead of others.  Mrs M has from time to time displayed disinhibited behaviour.

74.  I next turn to Mrs M's mental health and her personality.  I have reviewed Dr Fear's evidence at some length.  Mrs M has a long and severe history of mental health problems in the form of recurrent depression which was continuous and severe between 2000 and 2007.  She does not deny this and I am satisfied that she is doing all that she can to understand this illness and respond to its consequences.  In so far as her personality is concerned, the local authority asked me to find that she has a personality disorder.  I accept that it is open to me to make such a finding.  There are elements, distinguishing features of her whole personality, which are troubling; I have identified them already.  Dr Fear was cautious and careful with his use of words when questioned about this subject.  He said that on the basis of his clinical examinations (he saw Mrs M in September 2008 and January 2009) he could not say whether or not she had a personality disorder.  I have been asked to consider the evidence of others including, as I have said, Mr D and Mrs W.  My finding as to personality disorder is as follows.  I am not prepared to place such a label on Mrs M given the whole of the evidence of Dr Fear, which was couched with caution, and my rejection of the views of Dr McIntee.  However, this finding does not minimise the concerns that there must be for the future as to Mrs M's capacity to care for her children.  Her personality and the prospects of further bouts of depression must be faced up to."

58. In these two paragraphs Mr Tolson particularly emphasises the penultimate sentence of paragraph 73.  Mr D and Mrs W were the principals amongst the five that Dr Fear had identified in his October report.  Once the Judge had accepted their evidence, then, submitted Mr Tolson, the disabling diagnosis was inevitable.  This submission was also advanced by Mr Tyson.  He suggested that this was the Judge's principal error in reasoning that the section 31 threshold had not been crossed.

59. This argument is superficially attractive but on investigation it crumbles.  After the judgment of 10th December all parties were concerned to ensure that whatever judicial findings Dr Fear required in order to complete his task should be precisely specified.  Accordingly at a directions hearing on 19th January 2009, an order was drawn which required a letter to be expeditiously agreed and dispatched to Dr Fear to enable him to specify what he needed.  The order was never implemented.  The guardian was informed by Dr Fear that he was not prepared to join in the exercise and had nothing to add to his earlier report.  An alternative letter was then agreed, without much expedition simply asking Dr Fear to update his October report. 

60. These developments in January and February 2009 buried any possibility of Dr Fear diagnosing personality disorder.  He gave oral evidence on 27th February 2009 and that was his last appearance on the stage.

61. In fairness to the Judge I would emphasise that he dealt with the evidence of Dr Fear fully and carefully in paragraphs 21 to 27 inclusive.  He noted that:

"In answer to Mr Hyde Dr Fear agreed with the suggestion that, even if (the mother) did have a personality disorder, its existence did not exclude her as the sole carer of her children."

His concluding paragraphs are as follows:

"26.  Dr Fear's evidence must be considered as a whole.  It has been easy for the advocates to identify parts of his evidence – and I do not blame them – which support their contentions.  Taken in its entirety – and there is a lot of material to consider – I do conclude that Dr Fear is not telling me that Mrs M is unable to care for her children as a single parent.  There are real risks attached to such an outcome and she needs to have a clear understanding of the nature of her illness which includes the ability to avoid and recognise the likely triggers as well as have in place a crisis rescue plan in the event of a further episode of depression.

27. I make the following findings on the basis of the evidence of Dr Fear, a jointly instructed expert, whose evidence has not been challenged.  In the past Mrs M has had episodes of mental illness which at times have been severe.  Such episodes have been triggered by stressful events in her life.  There is a real risk that sometime in the future Mrs M may suffer a further, even severe, episode and the onset of such an episode makes it more likely that she would suffer another such episode.  Mrs M may suffer from a personality disorder which, when combined with the identified risk of a further episode of mental illness, would seriously compromise her ability to look after the children.  Mrs M is not precluded from looking after her children if she is able to show insight into her mental health problems and put in place a support package and crisis rescue plan."

62. Mr Tolson then mounted an all out attack on the guardian.  He accused her of taking an extreme position and even labelled her opinion that the children should not be in the father's primary care as perverse.  That submission was, in my judgment, quite unwarranted. 

63. Finally Mr Tolson suggested that the Judge had excluded the father largely on the grounds of the animosity which he held for the mother.  Mr Tolson said that that was mutual and therefore self-cancelling. 

64. However that was only one aspect of the father's negativity.  Dr Parsons, who had assessed the risk of future violence as minimal had, however, found that the father lacked warmth and empathy which would impact adversely on the children.

65. In summary, the Judge in following the guardian's recommendation, was satisfied that the mother's shortcomings were balanced by developing insight, a crisis management programme and a willingness to seek treatment.  Each parent had shortcomings of a very different nature. 

66. In dismissing Mr Tolson's attack on the welfare judgment and the orders for future residence and contact, I would only emphasise that this was, even for an experienced specialist Judge, something of a nightmare case.  During its rambling course the Judge was required to give no less than five judgments, albeit two were comprised within the final judgment of 5th August.   On every occasion he expressed himself clearly and conscientiously examined all the evidence upon which each judgment rested. 

67. I come now to the local authority's respondent's notice by which they seek to appeal the Judge's dismissal of their care order application on the simple ground that the section 31 threshold had not been crossed.

68. Again, before considering Mr Tyson's submissions, it is worth considering the context.  First, the entry of the local authority into this private law case had been triggered not by any traumatic development, but only by the making of an order which, albeit by consent, was nevertheless, an order which the District Judge must have concluded advanced the welfare of the children.  The entry of the local authority into the case had an extremely unfortunate consequence for the children, albeit neither intended nor foreseen. They have spent over two years of their very young lives in foster care. Undoubtedly the foster carers have been exceptional and there has been generous contact, but it remains contrary to the interest of the children that they should be maintained in placements outside an available and good enough family a day longer than is essential.

69. Secondly, the local authority did not immediately challenge the Judge's dismissal of their application.  On 20th July they might have sought permission to appeal and, if refused, sought a brief adjournment of the proceedings to enable them to make an urgent application to this court.  Instead the local authority only advanced their appeal reactively when this court on 21st August granted the father's three applications for permission.

70. Thirdly, I consider the local authority's appeal to be almost academic.  If the Judge had accepted their submission that the threshold had been crossed and left them in the case for the last two days, it is plain to me that the same order would have resulted.  The local authority sought a care order with a care plan to place with the father.  The Judge would not have granted that order without completing the welfare check list which led him to the conclusion that the mother should be the primary carer.  The local authority were not prepared to amend their care plan and accordingly the Judge would have dismissed their application for a care order and made the residence order to the mother and contact orders to the father.  If the Judge felt on 20th July that there was no longer any need for the local authority in the case that is understandable. 

71. All that said I must pay tribute to Mr Tyson's submissions.  His skeleton argument neatly advanced five grounds.  In his oral submissions he advanced grounds 1, 2 and 5 resolutely and persuasively.  Grounds 3 and 4 received less emphasis. 

72. Ground 1 was the submission advanced by Mr Tolson in relation to the Judge's treatment of Dr Fear's evidence.  That argument I have already rejected. 

73. Ground 2 asserted that the judge had failed in his plain duty to explain his rejection of the guardian's view that the section 31 threshold had been crossed.

74. Grounds 3 and 4 addressed the mutual loathing of the parents described as a poisonous relationship.

75. Ground 5 advanced the argument that, in considering future harm, the judge had not sufficiently considered the mother's vulnerability to bouts of depression.

76. Although these grounds are skilfully advanced, they do not persuade me that the Judge erred in law or otherwise.  He explains himself very fully between paragraphs 69 and 78 of his judgment.  He recognises that the local authority asserted that the threshold had been established both on the basis of past harm suffered by the children prior to 14th December 2007 and on the basis of future harm.

77. Paragraphs 69 and 70 of the judgment dismiss any question of past harm.  Here is the telling sentence:

"Having read all the materials about them I find that prior to the events of 19th October, when their parents were close to separating by agreement, F and C were contented children and well attached to both their parents."

I can see no error in the Judge's reasoning in these two paragraphs.

78. The Judge then goes on to consider the local authority's submission that the children were at risk of future harm.  This was obviously the stronger limb of the local authority's case and accordingly it was fully considered by the Judge in paragraph 71 to 78 inclusive.  It is true that in considering future harm the Judge does, nevertheless, anchor himself to the crucial date, namely 14th December 2007, within those paragraphs 73 and 74 cited above.  However I emphasise the final two sentences of paragraph 74. 

79. I am not persuaded that the Judge erred in fact or law in reaching the conclusion that the threshold had not been crossed.  That is essentially a question for the Judge.  It is primarily a question of law and the law in this area is not simple.  That the guardian expressed a view on this question was permissible.  However it was plainly not binding on the Judge and it was not incumbent on the Judge to explain why he disagreed.  That obligation only arises when the guardian gives an opinion within the area of her expertise and not in the area of the Judge's expertise.  In any event the basis of the Judge's divergence is implicitly clear from his careful reasoning of his conclusion.

80. Accordingly I would also dismiss the local authority's appeal and confirm all the orders made by His Honour Judge Bromilow.  His decision to leave the parents to agree holiday contact is perhaps questionable in the light of their very bad relationship, but if agreement is not achieved, then Judge Bromilow will decide what arrangement best advances the welfare of these children.

81. Finally I draw attention to a general point raised by Mr Hyde.  He told us that the psychologist, Dr McIntee, refused to release her psychometric test data to the psychiatrist, Dr Fear.  I deprecate the refusal.  It flies in the face of inter disciplinary collaboration upon which the fully effective operation of the Family Justice system depends.

Lord Justice Moore-Bick:
82. I agree that these appeals should be dismissed for the reasons given by Thorpe L.J.

Lord Justice Wall:
83. I have had the advantage of reading Thorpe LJ's judgment in draft. It had been my intention to write a separate judgment reaching the same conclusions on the father's appeals, and in the result overall. I have, however, further reflected on this intention having read, in particular, paragraph 70 et seq. of Thorpe LJ's judgment (with which I am in complete agreement). Accordingly, having also come to the view (as I have) that,  while the appeals are of importance to the parties and to the children, they raise no general or important points of law or practice, I have decided that no purpose would be served  in my writing a separate judgment, which ultimately concurred in the result. I am therefore content to adopt both Thorpe LJ's reasoning and his conclusions.