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M (A Child) [2007] EWCA Civ 954

Appeal by father against part of a contact order in private law proceedings. Appeal allowed.

The principal complaint of the father was that the trial judge, in cosntructing the order, had ignored the evidence of several expert witnesses. She had also spoken directly to the social services team on the case and that conversation had created an impression of unfairness. Wall LJ, while agreeing that the trial judge had the power to ignore the expert evidence, stated that there must be clear and cogently argued reasons for doing so. Such reasoning was absent from the judgment and so the appeal was allowed with matter submitted for a further hearing.


Case No: B4/2007/1745
Neutral Citation Number: [2007] EWCA Civ 954
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday, 24th August 2007



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Mr J Hall (instructed by Messrs Stilwell and Harby) appeared on behalf of the Applicant/Appellant.

Mr R. Morris (the Respondent's grandfather) appeared in person, Mr P Newton (instructed by Messrs Bradleys) appeared on behalf of the Respondent.
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(As Approved by the Court)

Crown Copyright©

Lord Justice Wall:
1. This is a case to which reporting restrictions will apply and nothing must therefore be published which identifies the children concerned.

2. Although listed as an application for permission to appeal with the appeal to follow if permission was granted, we gave permission to appeal at the outset and heard argument on the case as a full appeal.

3. The case concerns four children whom I will identify by initials only. The eldest, DI, a girl, was born on 5 August 1995 so she is twelve. The second, also a girl, KM, was born on 29 September 1997 and is therefore rising ten. The third child, E, also a daughter, was born on 23 May 2004 so she is now three, and the youngest, a boy, DE, was born on 23 August 2005 and is thus two. DE is a surviving twin; his brother, J, died on 6 November 2005, a victim of sudden infant death syndrome. Obviously, J is therefore not a subject of these proceedings, but his untimely death nonetheless plays a not insignificant part in the case.

4. On 12 July 2007, in private law proceedings between the children's parents Miss Recorder Cameron, sitting in the Canterbury County Court, discharged all previous orders made in the case, gave the father parental responsibility and made a shared residence order in relation to all four children. She divided their time between their mother and their father in the following way:

"3. The children do reside with the father and the mother and the following arrangements shall apply:-

(1) As from Sunday 15 July 2007 at 2.00 pm all children shall reside with the Mother save as provided for in (2) and (3) below.

(2) During school term-time
(i) On alternate weekends from 3.30 pm on Fridays until 6.00 pm on Sundays, until 04 September 2007 when such weekend contact shall finish at 9.00 am on Mondays.
(ii) Each Wednesday for E and DE, from 10.00 am and for DI and KM from after school until 9.00 am on Thursdays.

(3) During school holidays and half terms
(a) For one half of each such holiday; During each school summer holidays, the periods to be alternate weeks throughout such holiday.
(b) On alternate Christmas days, commencing 2007 and each Father's Day with Father.
(c) The children shall spend each Mother's Day with Mother.
(d) on such further or other occasions as the parties may agree."

4. E and DE shall have contact with their Maternal grandparents during school term time on Tuesdays from 12 noon to 6.00 pm and on such other occasions that may be agreed between the Mother and the grandparents during periods when they are not residing with their father as provided herein.

And fifthly, the father's application for permission to appeal and for a stay of the order was refused."

5. This is the order which the father seeks to challenge. He does not dissent from the fact that the Recorder made a joint residence order nor does he suggest that the children should not spend substantial periods of time with their mother. His primary complaint is directed at paragraph 3(1) of the order which requires all four children to live with their mother during the week in school term time. It will of course be appreciated that neither E nor DE is of school age yet and that under the order the primary responsibility for the care of the children during school-term falls on their mother.

6. The Recorder's order varied a previous interim order which she herself had made on 15 December 2006. At that time KM was already living with her father and DI was living with her mother. The issue between the parents at that time was where E and DE should live. In the interim order made on 15 December 2006 the Recorder directed that E and DE were to reside with their father until the final hearing of the case. She also made detailed contact arrangements to which I will return later in this judgment. The order made on 15 December 2006 involved a change of residence for E and DE, who had up until that time been living with their mother.

7. Thus the effect of the order made on 12 July 2007, which is the subject matter of this appeal, was, in essence, to place all four children together under the mother's roof and to discharge the interim residence orders made in the father's favour in relation to KM, E and DE. The Recorder's judgment, which the children's father now seeks to challenge in this appeal, was the third successive judgment she had given in the case and, as she records, it was the fifth occasion in which she had dealt with the case since September 2006. It was, accordingly, a case which she knew well.

8. The previous judgments given by the Recorder on 9 October 2006 and 15 December 2006 have both been transcribed and are in our papers. As at 9 October 2006 DI, as I think I have already indicated, was living with her mother and KM was living with her father. Thus the issue in October 2006 related only to DE and E. The Recorder was being asked by the father to make interim orders in his favour relating to those two children. She declined to do so and made interim orders in favour of the mother; I will return in due course to her reasons for doing that.

9. In her judgment given on 15 December 2006, the Recorder reversed her previous decision of 9 October. As I have already recorded, DI continued to reside with her mother but the effect of the interim orders made in relation to E and DE was they went to live with their father. Thus the three younger children were living with their father pending the final hearing of the parents' applications.

10. That final hearing took place before the Recorder in May and June 2007. The Recorder heard evidence on 21, 22, 24 and 25 May. That included the evidence of a jointly instructed psychologist, Mrs IMA, who had reported in writing on 8 February 2007, and of whose oral evidence we have been provided with a transcript. The Recorder also heard the oral evidence of AS, the children's key social worker, who had been involved throughout and who had reported extensively in writing on 16 May 2007. The Recorder also heard the evidence of the father and other non-professional evidence called on behalf of the mother.

11. The Recorder did not hear the evidence of the mother until 28 June 2007 which was followed immediately by the submissions of counsel. She then delivered a reserved judgment on 12 July 2007 and, at the conclusion of that judgment, she made the order to which I have already referred.

12. The father's appellant's notice was filed promptly on 26 July 2007 and, on 7 August 2007, Ward LJ, on the papers, adjourned the father's application for permission to appeal until today with the appeal to follow if permission was granted. What he said in making that direction, in my judgment, gives a clear indication of some of the issues in this appeal. Ward LJ said this:

"There are obvious matters of concern such as the judge's acceptance of the mother's assurance that she has given up her addiction to amphetamines and it may be premature to reach that decision, her rejection of the Trichotech test, her apparent failure to have full regard for the expert opinion perhaps without giving full reasons for doing so, the failure to take into account the general concerns about the mother's abilities to care for the children and so forth. On the other hand this is a long and careful judgment in a difficult case where discretion has to be exercised. If, as I am told, there is room for this matter to be dealt with in the list on 23 August then this Court should grapple with the problem sooner rather than later."

And in the box used for information for directions to the parties, Ward LJ added:

"It is essential that the skeleton arguments concentrate on the best points and leave aside matters of peripheral importance. As limited time is available for this matter it is important that counsel concentrate their minds on issues that really matter."

Finally, the learned Lord Justice estimated accurately that the case would take a day to hear.

13. The injunction I have just read out to counsel has, in my judgment, been faithfully observed. Speaking for myself I am extremely grateful for the high level of advocacy, both from Mr Jeremy Hall for the father and Mr Philip Newton for the mother, in what is plainly a difficult and extremely worrying case. We are, of course, aware that the application has come into the list as a matter of urgency and that this has caused considerable inconvenience to counsel. The reason for the urgency is self evident. School term begins shortly and the two older children in particular need to know what the arrangements for the new term will be.

14. I should add that we also heard from the children's maternal grandfather, who I will call Mr RAM, on behalf of himself and the children's maternal grandmother. I hope Mr RAM will not think me dismissive when I say that he and his wife appear to me fully to support their daughter, whilst at the same time acting as a back stop, should this court be minded to allow the father's appeal. They are not, however, in a position to care for all four children in any event and furthermore as neither party envisages the children living with their grandparents I do not, in this judgment, propose to spend any more time on the grandparents' case.

15. For the mother, Mr Newton sought to persuade us that this was in essence a case about how the children were to divide their time between their parents. He sought to downplay any wider general considerations of welfare. There was, he argued, no dispute about the Recorder's decision to make a shared residence order and, whatever the outcome, the Recorder had divided the children's time between their parents, and all four children were going to spend a substantial amount of time with each parent, quite irrespective of the controversial issue as to whether or not the mother had abandoned her use of amphetamines. Mr Newton's submission, accordingly, on this basis, was that we were dealing essentially with a conventional exercise of judicial discretion, in the context of which it could not be said that the Recorder had gone "plainly wrong" within the well known phrase used in the decision of the House of Lords in G v G [1985] 1 WLR 645. Furthermore, if the Recorder was proved to be wrong, and if the mother had not, contrary to her evidence to the Recorder, abandoned amphetamine use, that fact would swiftly emerge, and it would be open to the father to apply to the court to vary the order once again, and to seek to return the children to his care.

16. I am myself unable to accept those submissions. In my judgment, this case is about parenting, and about parental capacity . It raises some quite profound and important issues. It is not simply about dividing the children's time between their parents.

17. There are, to my mind, two critical questions in this appeal. The first is whether or not the Recorder's undoubted exercise of discretion is vitiated by the manner in which she went about her task. The second, which only arises if the answer to the first is "yes" is what this court can and should do about it.

18. On the first of these two questions two particular criticisms of the Recorder's judgments seem to me to be pertinent, namely: (1) that her acceptance of the mother's evidence that she was now amphetamine free was uncritical, not warranted by the evidence and, in short, plainly wrong: and (2) that the Recorder failed to undertake an essential task, namely to explain why she disagreed with the substantial body of professional evidence which was strongly of the view that the course in fact adopted by the Recorder in her order was unacceptable. In order to examine these two propositions I need to fill in a little of the background. Given the conclusion which I have reached, however, I do not propose to say anything more than what I regard as essential for the disposal of this appeal.

19. We were provided with a helpful chronology and case summary by Mr Hall. For the purposes of this judgment, I need only give a few salient facts. The father is now 40 and the mother is 32. The parents have never married. They had what was plainly a tempestuous relationship over about eleven or twelve years with many partings and reconciliations and a substantial degree of domestic violence, about which the judge made a number of findings of fact.

20. I have already given the dates of birth of their children. The family first came to the notice of the social services department of the local authority in 2002, and the parents separated in September 2005 or thereabouts. The children are all currently on the child protection register of the local authority.

21. Following the birth of the twins on 23 August 2005, the two infants, with the mother's apparent encouragement, were taken by their father in September 2005 to live with him. Both parties then applied for the residence of the twins and an interim order was made for their care to alternate between their parents.

22. The death of J occurred whilst the twins were in their mother's care, but no blame attaches to her for J's death, and its relevance in the current proceedings is limited in, my view, to two important facts; (1) that the child's body was discovered by KM; and (2) that the mother has signally failed to take any proper steps to enable either herself or -- more significantly -- the children to grieve for their dead brother. This is one of the aspects of parenting which, to my mind, is relevant to an eventual outcome, but does not form a critical part either of the Recorder's judgment or to my analysis of it. I therefore do not propose to say anything more about it.

23. After J's death there was a series of applications and orders, the detail of which I need not record. I propose to take up the history as at 9 October 2006, when the Recorder gave her first judgment. At that point, it will be recalled, KM was living with her father and the three other children were living with their mother.

24. One of the critical features of the case -- indeed perhaps the critical feature, has been the mother's addiction to amphetamines, and the effect of that addiction on both her parenting capacity and on her. When the Recorder heard the father's application for interim residence on 9 October 2006, his applications, as I have already made clear, focused on E and DE, the two youngest children. The critical question for the Recorder was whether or not the two youngest children should remain with their mother pending a final determination given that their mother had tested positive for amphetamines in May 2006, and had rejected all attempts by the local authority to persuade her to attend for drugs counselling, treatment or advice.

25. In paragraphs 9 to 16 of her judgment given on 9 October 2006, the Recorder dealt with the mother's recent drug history. She referred to a positive TrichoTech hair test in May 2006, to a very recent positive swab test which the mother contested, and to the mother's insistence to social services that she had no intention of attending any of the services offered to her for drug counselling, testing or advice. The Recorder described the mother's commitment to attending regularly for testing and support as "as yet untried and untested", and identified a number of concerns about the mother's parenting, notably her failure to attend for appointments for the children, and DI's poor school attendance.

26. Despite these factors, the Recorder, in a careful and well constructed judgment, came to the conclusions, which she expressed in paragraphs 37 to 40 of her judgment under the heading "The Decision":

"37. Overall, after that very consideration, I have come to the conclusion that there is not such an overwhelming need or concern at this juncture to justify the court in intervening to change the present status quo and remove DE and E from their Mother's daily care. In my judgment the risk can properly managed [sic] by the ongoing assistance of Social Services buttressing the Mother's care of the children, and the Court reviewing the matter at the end of the first 8 weeks tranche of counselling and effort that the Mother undertakes. It is not helpful to these children at these young ages to be yo-yoing to and from [sic] between their parents and different homes, although of course there will be frequent and ongoing contact.

38. I view it as helpful and supportive of the Mother, and also to protect importantly the interest of these children, to give her that 2 months test. She will be under the spotlight, to use her own phrase, and will have only herself to blame if she fails. All the support is there and she must access it.

39. So, in the interim, there is going to be a very regular pattern of contact established, I think much along the lines it has supposed to have been happening. It must happen in the future to ensure that the children and the Father see each other and the Father can properly alert the authorities to any difficulties if they arise. So I wish to fix a review before the Christmas break.

40. Accordingly there will be an Order for interim residence of DE and E to the respondent Mother."

27. The father did not seek permission to appeal against that order. However, when the matter came back before the Recorder in December 2006, as she had directed, it was plain that the mother had not begun to address her amphetamine abuse. She had acknowledged, for the first time, that it dated back some eleven years, but she had plainly failed to engage with any of the services previously identified by the Recorder. The Recorder was also very concerned about the position of DI, who was not attending school regularly and who gave the Recorder the strong impression of a child living at the edge of a great deal of strain. DI was being given a wholly inappropriate degree of responsibility for her mother's safety and emotional well-being, which the Recorder described, rightly in my view, as "a burden beyond her years".

28. The upshot was that the Recorder made interim residence orders in relation to KM and E in the father's favour, whilst at the same time making it clear that her decision did not prejudge the ultimate issue to be decided in the final hearing. The Recorder expressed considerable concerns about DI whom she thought "may well feel abandoned and isolated with her drug dependent mother who may seem good enough to look after her but not the little ones". Her conclusions are set out in paragraphs 33 to 36 of her judgment:

"33. The mother must now concentrate on getting her life in order, looking after DI and becoming more involved with DI's schooling and homework and attending consistently all the appointments required of her. One hopes that the mother will be able to accompany DI several times a week on the walk to and from school. Only in all of those ways, and taking full advantage of the time extended to her, can this mother properly prepare herself for the full hearing next May. So, she has four or five months really to turn her life around while of course seeing the other three children very regularly. That will start on the basis of both the generous Christmas contact that I have seen in the helpful schedule that has been provided, which will be attached to the Order I make, and the usual ongoing contact timetable.

34. I make it entirely clear that today's decision is not prejudging the ultimate issue next year. This is very early stages and much can change in the intervening months, hopefully the mother's health and priorities among them. The court has not come to this decision lightly and understands the effect on the mother, a devastating effect as was said, who has begun to engage in what was required of her, and the effect on the others I have mentioned already. The younger children need constant care. They are of course walking and active and much more demanding of mother's attention than when they were young babies. She is overwhelmed at the moment. That seems plain from her witness statement. If a simple letter setting out the requirements and the decisions about her Christmas contact is a tipping point, as Mr Hall alluded to, it means that she cannot cope and really is having trouble keeping, as was said, all the balls in the air. It is too much to ask of her to carry on coping in that way with everything. She needs to get stronger and to work towards being drug free. The stakes are very high for her and she has that mountain to climb, as Mrs AS put it.

35. You never recover from the death of a baby, and the mother has that daily reminder of what might have been from the presence of J's twin. She may not have had proper time or space yet to start to grieve. This occasion now will give her some respite to start dealing with all of that and to become a stronger carer for her children in the future. The court must prioritise these children's needs over hers, and let their familiar father now take over the major proportion of the daily caring role while the mother pursues her won challenging and difficult road, having finally gone through that door. There are still many hoops for her to jump through.

36. It was interesting that although Counsel for the father commented that when a hearing date hoves into view over the horizon things dramatically improve for a bit, the Court could not actually in fact detect that happening with any great effect and must take an overview of the whole situation. Overall, all the evidence points one way and it is of such a nature as to warrant a change of carer to the father for E and DE. Whilst there is no immediate risk today, or indeed tomorrow, of physical damage to the children, it is simply not appropriate to have all the strain and delay of yet another interim hearing in January or February or March and to leave it to the police or Social Services to intervene in the event of any emergency arising. The court is not prepared to wait and see any longer, but acts today to protect and advance the children's emotional well being."

29. The mother sought permission to appeal against that order. Such is the pressure of work in this building, it was only when I saw my name in the index to the trial bundle that I realised that I had been the single Lord Justice who had refused the mother permission to appeal. I have re-read my reasons given on 5 February 2007. I do not resile from anything which I said. I do not, however, propose to read those reasons into this judgment since they are there in the bundle to be read if need be.

30. I remain of the view which I expressed at the time that both the Recorder's first two judgments were careful and well thought out and represented the entirely proper exercise of a well founded judicial discretion. In short, they were both, in my view, unappealable. I interpolate at this point that, to my mind, one of the curious features of this case is the stark contrast between the Recorder's judgments given on 9 October and 15 December 2006 and the judgment under appeal, to which I shall now turn.

31. In preparation for the final hearing before the Recorder, the mother saw a psychiatrist, Dr JM, who reported on 15 January 2007. Dr M was asked to address five questions. They are set out in Dr M's report at page C281 of our bundle, and I propose to read them. They were:

"1. Identify the extent of the mother's drug usage.
2. Consider the future prognosis with regard to such usage.
3. Consider the impact of such drug usage upon her parenting skills.
4. Identify the prognosis for change.
5. Identify any support services that may be required for the mother in relation to such drug usage."

32. As at 1 December 2006, when the mother saw Dr M; she told Dr M that she was spending £20 a week on amphetamines, and explained her use to the doctor in the following way:

"She stated she was spending £20 a week on amphetamines. That she was consuming it by swallowing it only and denied any other drug use. She stated that she had not used any alcohol in the past two and a half years and she felt amphetamines 'give me a boost, keep me going to look after the children, housework, cooking, bathing etc'. The mother told me that she is attending KCA, that being the specialist drug service in Dover. She told me that she had been attending KCA for five weeks for counselling and testing for illicit drug use weekly. However, in the report compiled by… (the KCA Community Drug Worker) dated 12.12.06, I note that her initial referral to KCA was on 6th October 2006, she was offered a counselling assessment on 13th October but did not attend, a further appointment was offered for 31st October 2006, and again she did not attend. The referral was then closed to counselling and on 28th November 2006 she was re-referred to counselling, on 7th December 2006 a counselling assessment was arranged but was cancelled by the mother and on 12th December 2006 a counselling assessment was attended. The report states that following this assessment it was agreed that a re-referral would be made to Substance Misusing Parents and in the interim, a contract of eight counselling sessions, beginning in January 2007 would be offered.

At my request the mother provided me with a urine sample at interview which on testing was positive for amphetamines and negative for any other drugs. This result therefore confirms her statement to me on 1st December 2006 that, at the point of interview, she was using only amphetamines."

33. Dr M's answers to the five questions posed to her are clearly set out in her report and appear in our bundle at page C285:

"1. Identify the extent of the mother's drug usage;
As described within the body of this report, it is clear that the mother, on the 1st December 2006, was using amphetamine sulphate but was not within the recent date of that interview using any other substances. The TrichoTech hair sample identifies ongoing amphetamine use during the earlier months of 2006 and by her own admission the mother has used amphetamines on average three times a week, between the ages of 20 and 31, with the exception of the duration of each of her pregnancies.

2. To consider future prognosis with regard to such usage;
I would consider the prognosis to be guarded at this point in time, particularly as efforts have been made to engage the mother in ongoing work with KCA, with little engagement on her part until December 2006. I understand that counselling is planned to commence in January 2007 and would defer any future judgement of her prognosis until her progress in such counselling can be examined. In particular I am of the view that the mother has had difficulties in admitting to her addiction to amphetamine sulphate and therefore her engagement and compliance with treatment will further inform a future prognosis.

3. To consider the impact of such drug usage upon her parenting skills;
As previously noted, I am not competent to give an expert opinion on parenting, but do feel able to give an opinion on the most likely effects of amphetamine sulphate usage on an adult female in the context of their day to day function. Amphetamine sulphate is low purity mixed isomer amphetamine, the purity usually being between 15 and 20 percent. The mother, by her account, is using small amounts of amphetamine by swallowing only. Such amphetamine use reduces appetite and gives a feeling of well being and social and functional competence. However, task completion by adults when under the influence of amphetamines, although perceived by themselves to be effective, are less affective than in the same adult when not exposed to amphetamines. Therefore, the ability to consider the consequences of actions, initiate and complete tasks, is compromised in the context of amphetamine use. Additionally, abstinence of amphetamines for periods of time, as described by the mother with her sporadic three times a week usage, may cause lowering of mood within 48 – 72 hours of the last use. Therefore, I would estimate that such amphetamine use would cause inconsistencies in behaviour, with heightened periods of social and physical activity interspersed with periods of lower than normal mood. Additionally amphetamine use causes insomnia, conversely amphetamine withdrawal causes hypersomnia and therefore I would expect that such use as described in this case would leave the mother with a disturbed sleep pattern, either being unable to sleep or sleeping for lengthy periods of time.

4. To identify the prognosis for change;
Beyond my considerations of prognosis in 2. above, I am of the view that it is too early in the course of engagement in treatment to comment further at this time.

5. To identify any support services that may be required for the mother in relation to such drug usage;
Engagement with and regular attendance at KCA is the immediate priority for the mother at this time. , additionally, attendance at her General Practitioner to check her physical health and any supports as identified by the parenting assessment should be put in place as rapidly as possible. Additionally, given the disparity between the mother's and the father's statements as to their current relationship, it may well be that this couple need more formal arrangements for transfer of childcare to avoid the children being a part of the conflict within their relationship."

34. There was also before the Recorder at the final hearing a substantial report from a jointly instructed psychologist, Mrs IMA. She had been instructed to assess the children and their parents and -- in particular -- to address five particular questions:

"A. Consider the placement of the children either with their mother and/or father either as a sibling group or as individuals whichever residences I consider would best meet their needs.

B. Depending upon my recommendations, consider what level of contact the non-caring parent should have with the children and whether this would be the same for each child or whether the individual needs of the child should be met be different arrangements and/or considering the issue of contact consider extended staying contact or holiday contact.

C. In having regard to A and B above, consider the following:

1. Both parties' background and circumstances and any impact arising in respect of their ability to parent the children, and undertake such cognitive and personality testing in respect of both parents as I consider appropriate.
2. The effect upon any or each of the children's development (emotional, social, educational, psychological) and the relationship between the parents and each child, in particular the cross allegations of domestic violence.
3. The attachment between each parent and the children.
4. The relationship between each of the children and themselves.

D. Consider the Trichotech results and any further drug testing results, and the expert opinion provided by Dr JM and identify the impact that such results may have upon the mother's current situation and relationship with the father and the children.

E. Consider what therapeutic and support services should be engaged in relation to:
1. the mother;
2. the father;
3. each child."

35. Mrs IMA's report runs to some 70 pages, and is very detailed. She also gave oral evidence to the Recorder at the final hearing, and we have been provided with a transcript of that evidence. Mrs IMA's views were very clear. I do not propose to go through her report in detail, or even to record Mrs IMA's conversations with the mother, parts of which are, in my judgment, significant. It is for present purposes sufficient, I think, that I record part of her opinion, expressed in Section 16 of her report at pages C344/5 of the court bundle. This I propose to read. She had been asked a question:

"A. Consider the placement of the children either with their mother and/or father either as a sibling group or as individuals whichever residences I consider would best meet their needs."

Her answer was in these terms:

"Given her present condition -- i.e. trying without professional help to stop/reduce her use of amphetamines, likely eviction from her home, unwillingness to work in collaboration with the local authority -- I do not consider that mother is in a position to care for any of her children. In my opinion it is of concern that DI is still living with her, although this is the girl's stated wish, probably as she feels she needs to stay with mother to provide company and security.

I am in no doubt that the children want to live together, and indeed in an ideal world would want to live 'like a normal family' with mum and dad. In my opinion it would be totally inappropriate for the three youngest children to return to mother's care, at least until she has proved conclusively [I interpolate the word is inconclusively but must be wrong] that she has changed.(not just having stopped using amphetamines). Currently the mother is in no position to meet the physical and emotional needs of her children. If/when mother is evicted from her home, it may be appropriate for DI to move to live with her father and siblings -- however if this is to occur, it should take place on a planned, rather than on an emergency basis."

36. In my judgment, nothing could be clearer than that advice, and if the Recorder was to disagree with it and, in particular, if she disagreed with Mrs IMA's conclusion, she had both to analyse them and to express clearly why she did not agree with them.

37. Mrs IMA's remaining conclusions were equally clear. I do not propose to read them all out or to incorporate them into this judgment. Mrs IMA may have been right or wrong; for present purposes that does not matter. What does matter is that she was advancing a clear opinion and one, moreover, patently within the area of her expertise. She was, in addition, answering questions which the court had instructed her to answer by giving the parties permission jointly to instruct her. In these circumstances, it was, in my judgment, self-evident that if the Recorder was not going to accept her advice -- and it was open to the Recorder not to accept it -- the Recorder had to explain why.

38. Particularly important, in my view, was Mrs IMA's assessment of the mother:

"16.4. In having regard to [A and B] above, consider the following:

1. Both parties background and circumstances and any impact arising in respect of their ability to parent the children, and undertake such cognitive and personality testing in respect of both parents as I consider appropriate.

The mother, by her own account has felt marginalised and unloved throughout her childhood. She described herself as being independent from an early age, yet reports that she has relied heavily on her parents for financial support (even to date). She formed an unhealthy intense relationship with the the father – it would seem that she had a much greater need for his love and obsession with him, than he ever had for her, thus leaving her insecure and unloved. She has never been in paid employment, as she was frequently pregnant, or acting in the maternal role. She has suffered depression, and although not formally diagnosed I consider that she may have an eating disorder, at least she has a distorted body image.

Her amphetamine use has been long term, apparently started to control her body weight, but also latterly to give her energy to carry on with life tasks. Dr M stated in her report dated January 2007 that:

'The ability to consider the consequences of actions, initiate and complete tasks in the context of amphetamine use. Additionally abstinence of amphetamines for periods of time, as described by the mother with her sporadic three times a week usage, may cause low[er]ing of mood……I would estimate that such amphetamine use would cause inconsistencies in behaviour, with heightened periods of social and physical activity interspersed with periods of lower than normal mood…I would expect that such use as described in this case would leave the mother with a disturbed sleep pattern, either being unable to sleep or sleeping for lengthy periods of time.'

Additionally the mother has had to deal with the sudden death of her baby son. She attributes many of her current problems to this loss, but there is ample evidence that she was not coping adequately beforehand.

An amalgam of her life experiences and volatile personality has disabled her within the parenting role. It is not in dispute that she loves her children and that she can interact with them very well when she is in a buoyant mood, sadly her inconsistent and impulsive behaviour is such that, certainly at present, she cannot act as a safe and nurturing parent."

39. In relation to the TrichoTech result, Mrs IMA was also asked to consider the opinion of Dr M, and in a passage on page C355 of our bundle, the psychologist says this:

"I concur with Dr M's view that 'engagement with and regular attendance with KCA is the immediate priority for the mother at this time', sadly she has made it clear to me and the social worker that she will not attend. Her stubborn, rather adolescent attitude towards this matter has rendered it impossible for anyone to consider rehabilitating the children to her."

The psychologist then considered what therapeutic and support services should be engaged in, in relation to the mother, and she said this:

"Mother is in urgent need of support to help her overcome her amphetamine habit, yet she is completely resistant to such help. In the event that she is able to overcome this problem by herself, she would need to have further assistance to help her remain abstinent.

I also consider that she would benefit from therapeutic input to address bereavement issues, but she is also unwilling to accept help in this area. Although not formally diagnosed I consider that she may have an eating disorder which would need to be investigated.

Mother would also benefit from input from a professional experienced in working with split families -- to help her understand the children's needs in order to act in a mature and nurturing manner."

40. Mrs IMA adhered to these views in her oral evidence. One particularly striking passage on which Mr Hall, for the father, relies, reads as follows:

"Q. …The point I want to put to you is that does not the drug taking, there had clearly been a chronic problem, even on mother's own case, does that not actually mask a proper analysis of precisely what she needs to address? If you like, it is only once she has managed to free herself from this amphetamine use. Only then will it become clear what other work needs to be done to address those difficulties that you list?

A. …Yes. I think that is very likely. In fact she has said herself, I think it is in her statement, that she is concerned about how she would feel if she stops taking amphetamines, that she could fall into depression, which she is very frightened of. I think if and when she stops using the amphetamines, there is likely to be a whole undercurrent of other problems that may emerge, or they are already there, but may become more obvious."

41. The third piece of important professional evidence in the case came from Mrs AS, the children's key social worker, who knew the case intimately. In her previous judgments, the Recorder, rightly in my view, had praised Mrs AS and her work with the case. The Recorder had before her a long and extremely thoughtful report from Mrs AS which, of course, I have read carefully. Mrs AS also gave oral evidence.

42. Although I am not, in this judgment, concerned with whether or not Mrs AS was right or wrong, I have to say that after many years of practice in the Family Division and eleven years on the High Court bench, I have rarely read a better or more carefully-considered report than that prepared in this case by Mrs AS. Speaking for myself, I am wholly unimpressed with the suggestions, which emanated particularly from the maternal grandfather, but which have been expressed from time to time by the mother, that Mrs AS did not like the mother and was hostile to her case. I share the Recorder's expressed admiration for Mrs AS's role in the case. Her report, which is some 58 pages long, is, in my judgment, an excellent piece of work. Its conclusions and recommendations are thoughtfully and carefully presented. Her recommendation was that all four children should be in the care of their father.

43. As I have already made clear, I am not concerned in this appeal with whether or not Dr M, Mrs IMA or Mrs AS were right or wrong in the conclusions which they reached, and in the advice which each gave the Recorder. It is, as I have already indicated, axiomatic that it is the judge who decides the case, and it is for the expert or professional witness to advise. The Recorder was thus perfectly entitled -- indeed bound -- to disagree with the experts' opinions and the professional evidence, if she concluded that the advice being given to her by the three professional witnesses was either wrong or did not assist her in reaching her conclusion about the welfare of the individual children. But what is equally axiomatic, in my judgment, is that if the Recorder was to reject what on any view was relevant expert advice conscientiously arrived at, well-reasoned and clearly expressed, she was under a duty to explain fully and clearly why she disagree and why she was taking a different course.

44. It is at this point that I come to the Recorder's judgment, and to put the matter starkly and simply I have to say that I search it in vain for any proper discussion or analysis of the professional evidence and advice given to her, and it is, accordingly, at this point that I find myself in complete agreement with the thrust of Mr Hall's principal criticism of the judgment. The Recorder reaches the opposite conclusion to that reached in particular by Dr M, Mrs IMA and Mrs AS, but in my judgment she fails to explain why she has done so or why she rejects their conclusion. There is simply no proper analysis of the reasoning of any of the three professional witnesses and, in my judgment, Mr Hall's grounds of appeal in this respect are amply made out.

45. Furthermore, for all his skilful advocacy, Mr Newton was simply unable to plug the gap. I have already rejected his first submission -- that the issues in the case were not as great as the grounds of appeal sought to suggest. Mr Newton argued, however, that unlike the previous provisional hearings, on this occasion the Recorder had heard oral evidence; she had made findings of fact not open to her at the earlier stages of the case; those findings had clearly influenced her, and entitled her to form a different view. They had led her to the conclusion that the case was finely balanced, and that the wishes of the children required them to be reunited under their mother's roof.

46. But above all, Mr Newton was constrained to argue that it was clearly the way the Recorder perceived the case; it was the Recorder's perception of the mother's evidence, and her acceptance of the mother's assertion that she was now amphetamine-free, which entitled her to reach the conclusion that it was now safe and appropriate to permit the primary care of the children to their mother.

47. What appears to me to have happened is that the Recorder heard the evidence of the mother at the very end of the case, immediately before submissions, and after all the other witnesses had given evidence. She was plainly very impressed by it, and, in my reading of the judgment, it is the Recorder's assessment of the mother, based on her oral evidence given on 28 June, which is the critical factor in her decision making process. In paragraph 24 of her judgment, the Recorder says this:

"The mother, small and slim in stature, appeared throughout the hearings to be a much more quixotic and reactive character. She has been under the thrall of her father for much of the last fifteen years. She is mouthy as her counsel called her, emotional and voluble, noisily reacting both inside Court and in the corridor outside, as I heard on occasion, to situations and to things said. She can or could be impulsive, impetuous and capricious and until very recently had been in unhelpful denial about the fact and extent of her drug addiction to amphetamines swallowed three times a week ostensibly to keep her energised and to maintain her weight. She has not cooperated fully with the Court and Social Services required of her but at the very 11th hour presented a changed and much more hopeful picture, having been drug free, she claimed, for some 6 or 7 weeks, having done it on her own and in her own time and way, and now realising, albeit very belatedly, how the drug had been running and wrecking her life and that of her children. When she came to give evidence on the last day she was much more thoughtful and measured than the Court had expected her to be and did not indulge in the inappropriate smiling and outbursts that had been witnessed as she sat behind her counsel during evidence. I find that she gave candid and truthful evidence and her presentation and behaviour were rational and balanced as Mr Newton rightly said she did not live down to the view that I had formed of her".

48. Mr Newton argues -- and once again normally this argument would be irrefutable -- that the Recorder alone heard and saw the mother. She was entitled to accept the mother's evidence as "candid and truthful" and, if this was a factor which tipped the balance in the mother's favour, (A) it entitled her to override professional evidence and (B) its acceptance was a perfectly proper exercise of judicial discretion.

49. I am unable to accept either of these propositions. In my judgment, the Recorder's acceptance of the mother's evidence does not absolve her from the necessary task of evaluating the professional evidence and explaining why she rejects it. Despite Mr Newton's valiant efforts he was unable to point me to any part of the Recorder's judgment in which she did anything other than record the expert opinion. I looked in vain for reasoned analysis and permissibly argued rejection. To the contrary, I accept Mr Hall's submission that the Recorder's reliance on her impression of the mother's evidence on 28 June led directly to a clear failure on the Recorder's part properly to address the experts' evidence and, in particular to a failure both to analyse their conclusions and give those conclusions appropriate weight.

50. That in my judgment is of itself sufficient to vitiate the Recorder's conclusion. However, the matter does not rest there. In my judgment, the Recorder was plainly wrong for a number of reasons to give the weight she did to the mother's assertions of success in overcoming the amphetamine habit. In the first place, the history of the case -- an eleven-year addiction -- argued strongly in favour of caution, particularly given the mother's clear rejection of any professional help. It was in my judgment at best naïve for the Recorder to accept at face value an assertion that a long-standing drug addiction had been suddenly overcome.

51. Secondly, and even if I am wrong about that, the Recorder relied on saliva tests. We asked about the reliability of such tests, and the extent to which they were able to measure drug use. We were shown an email from the head of analytical services of a forensic toxicologist which, in relation to on-site oral fluid tests for amphetamines, gave the length of time following drug use that the drug in question is detectable in a sample as up to 48 hours. The email adds, unsurprisingly, that the window of detection is dependent on the amount of drug taken and the variation between individuals in how quickly their body breaks down and excretes the drug. In some cases, accordingly, the drug use may be detectable for a few hours further.

52. Even without that evidence, which comes as no surprise, it was, in my judgment, plainly wrong for the Recorder to rely on saliva tests alone. I say that not simply because saliva tests are, in my view, plainly of limited value, but because of the manner in which the Recorder dealt with a formal TrichoTech hair sample test, which was before her.

53. In my judgment, the Recorder's error in relying on the saliva tests is thus seriously compounded by the manner in which she dealt with the TrichoTech test. This related to hair samples taken from the mother on 14 May 2007. The result of that test, which is contained in a report from TrichoTech dated 25 May 2007, shows increasing use of amphetamines over the period from February 2007 to April 2007. The mother queried the accuracy of the test, suggesting that it should have showed the opposite -- namely a decreasing use of the drug. There was, therefore, before the Recorder a letter from TrichoTech dated 21 June 2007 setting out the audit trail relating to the sample taken on 14 May, and confirming the result shown. We asked to see the letter from the mother's solicitors raising the query which is dated 30 May. That letter makes it crystal clear that the root end of the hair samples were placed correctly at the red dot end of the silver foil.

54. There was, accordingly, (and even without the letter of 30 May shown to us) absolutely no evidence casting any doubt on the TrichoTech result. The Recorder, nonetheless, was able to find, on the balance of probabilities, that it was open to her to find that the latest hair test may be unreliable and should not be used to substantiate an allegation of ongoing amphetamine use by the mother, particularly in view of what the Recorder described as "the three now clear swab tests…the most recent test dated 11th July this year".

55. I propose to read the whole of the passage in paragraph 52 of the Recorder's judgment in which she deals with this point, not least because it occurs in a paragraph which begins with the words: "I now turn to consider the professional's views and opinions about this aspect" (that is, I interpolate, the mother's use of amphetamines):

"The mother had reported in May that she had been able to reduce her use of amphetamines, and had ceased usage altogether as from the 5th May 2007, although she had said on the 26th March that she had ceased using drugs altogether at that stage. The mother had started taking Pro-Plus caffeine tablets, to which news Mrs AS [the social worker] expressed disbelief that all that had been separating the mother from achieving abstinence for the past seventeen months was a caffeine supplement. To her credit, the mother had recently attended 3 appointments for counselling…during May and June and the court was provided with two negative, that is clean, saliva tests dated the 25th and 27th June 2007, although the hair samples examined by TrichoTech showed a strangely heightened positive response from the beginning of April to the beginning of May 2007 of 6.7 whereas the previous month's testing had produced only 2.9 and the month before that February and March had produced 0.7. Mr Newton explained to the court that this could well have been the result of mixed hair samples having to be collected on two separate occasions by the mother's solicitor when the first sample had not produced enough hair for testing. He submitted to the court that, although it was thought the root ends had been properly presented in the sample, that there remained a risk of human error both at the point of collection and at the point of testing in the laboratory which rendered the heightened positive reading suspect and unreliable and indeed TrichoTech were challenged about that and that the Court has seen their response… I find that, on the balance of probabilities, it is open to me to find that the latest hair test result may be unreliable and should not be used to substantiate an allegation of ongoing amphetamine use by the mother, particularly in view of the now three clear swab tests helpfully [the local authority] having referred me to the most recent test dated the 11th July this year."

56. In my judgment, that finding was simply not open to the Recorder, and she was plainly wrong to make it. Furthermore, the clear impression left by this part of the judgment on me is that the Recorder's approach was to believe the mother, and thus to doubt the test. The proper approach, self evidently in my judgment, is the other way around. The question the Recorder should plainly have asked herself was: given the clear evidence of the test, what effect does that evidence have on the mother's credibility?

57. I am therefore entirely satisfied that the Recorder was plainly wrong to place reliance on the mother's assertion that she was now free of amphetamine abuse. Unfortunately, however, the matter does not end there, because the expert evidence was plainly to the effect that even if the mother was capable of ending her addiction (something for which the experts thought she would need professional help) that factor was in no sense the be all and end all of the matter. To the contrary, it was but one factor in a complex equation and would mark the beginning of a process rather than its conclusion. Freedom from amphetamines might well reveal other serious concerns (see the evidence of the psychologist). The Recorder, in my judgment, simply does not address that question.

58. It follows, in my judgment, that on this central element of the appeal, the judgment of the Recorder is wholly wanting. It is, I regret to say, flawed to an extent and in a manner which wholly vitiates her conclusion. It also follows, in my judgment, that the court is left with no alternative but to set aside her decision.

59. In fairness to the Recorder, I have to say that I find her third judgment in stark contrast to the first two. The first two, as I have already stated, are carefully-structured and well-reasoned. The third, I have to say, is discursive and, as I have attempted to explain, does not address the critical issue raised by the professional evidence in the case. In my judgment, the Recorder's third judgment gives a wholly disproportionate weight to her assessment of the mother's evidence and leads her, I regret to say, to fit the other evidence around that assessment. It is, I suspect, for this reason that the unanimous expert opinion, which is contrary to the mother's evidence, is not analysed, and the Recorder's reasons for discounting it are not articulated.

60. There is, however, one other aspect of the Recorder's judgment which gives me considerable cause for concern. It is the fact that after the evidence and submissions were completed, the Recorder, on 10 July 2007, initiated a telephone conversation with Mrs AS's line manager. The Recorder reveals this conversation for the first time in paragraph 103 of her reserved judgment -- far too late for either party to comment on it or make any submissions in relation to it. That paragraph relates firstly but not exclusively to a discussion about a possible family assistance order. The next paragraph, paragraph 104, reads as follows:

"A new social worker will be appointed for your family, Mrs AS, who became involved only because of Mr W's illness, will not be involved again. She has undertaken a formidable task over the last year but the personality clash which has come to the fore will not assist these children and she is withdrawing from this case."

The first sentence from paragraph 105 reads:

"What is anticipated in the future is not an intrusive, intensive output -- rather a quiet monitoring and weather eye to be kept on the situation."

61. Mrs AS's replacement was a matter clearly discussed on 10 May between the Recorder and Mrs AS's line manager. It is not clear to me entirely whether or not paragraph 105 relates to the same conversation, but it rather reads as though it does. We have been shown the local authority's running record which contains a note of the conversation itself comprising some two full pages, from which it is clear that the Recorder raised the issue of a change of worker and that other matters were discussed.

62. In his grounds of appeal, Mr Hall submits the following in relation to this conversation:

"It was wrong in principle for the learned Recorder to speak with the social services team leader about the case by telephone on 10th July 2007, after close of the evidence and submissions without, informing the parties of such call, nor the nature of it, until the end of her judgment. It is clear from the few details contained in the judgment that this discussion might have affected the way in which she arrived at her decision to move the children to their mother, and/or given such impression to the father. In such circumstances the receipt of relevant evidence was not managed in a fair and/or open way and the father's right to a fair trial has been compromised."

63. I respectfully agree. In my judgment, this conversation should not have taken place. The fact that it did gives rise to the clear impression of unfairness. It was also wholly unnecessary. If the Recorder had it in mind to make a family assistance order (which required the consent of the parties not any agreement by the local authority) she should have raised it in court and invited submissions on the point. It was, in my judgment, wholly inappropriate for the Recorder to raise both this question and, even more so, the question of Mrs AS's continuing role in the case with an officer of the local authority in private, and without the knowledge of either party.

64. What should this court do?

65. I am clearly of the view that the Recorder's order cannot stand, and must be set aside. The question, therefore, becomes what should this court now do?

66. For the father, Mr Hall invites us to substitute our discretion for that of the Recorder. He points to the unanimous professional evidence, and says that the clear solution is the following: that the shared residence order should remain, but all four children should be in their father's care during the week in school term.

67. For the mother, Mr Newton submits that if we come to the conclusion that the Recorder's decision cannot stand, the proper course is to order a re-hearing.

68. Much as I dislike the thought of putting the family through the process once again, I have come to the clear conclusion that on this point Mr Newton is right, and that the matter must be re-heard. In my judgment, however, it must be re-heard by an experienced full-time circuit judge. We have caused enquiries to be made over the period during which this judgment has been reserved, and we have been informed that HHJ Cryan, who is, of course, the designated family judge for Kent, will be able to hear this case over a period of four days on 3, 5, 6 and 7 December 2007, and that he would, moreover, be able to take a directions appointment, with a time estimate of one hour, in the week commencing 22 October 2007.

69. In my judgment, there has to be a re-hearing, and HHJ Cryan is the appropriate judge to take it.

70. The reasons I have reached that conclusion are, I hope, already clear. I have stated several times that it is not the function of this court to decide whether or not the expert and professional evidence given by the judge was right or wrong. The burden of this judgment is the Recorder's failure to address it. Equally, I do not know what the best outcome is for the children in this case. Our task, in my judgment, is not to decide that issue, but to analyse the work of the Recorder who did decide it. There is not, in my judgment, one obvious solution to this case. In all the circumstances it would, I think, be wrong for this court to exercise its discretion in the father's favour and impose the order he seeks. The only proper course in my view, albeit one which I regret having to impose, is a re-hearing before a full-time and experienced tribunal.

71. Speaking for myself, I would propose to leave all directions for the re-hearing to HHJ Cryan, who, by the time of the directions appointment on 22 October, will have read the papers, including this judgment, and will be in a position to give appropriate directions. The parties' advisors should, however, discuss directions prior to 20 October, and if agreement on them is not possible, each party should go before the judge armed with concrete proposals as to the nature and timetabling of the relevant evidence.

72. I will only make one obvious point. It will plainly be of critical importance in the case for the mother to demonstrate that she is free of amphetamines, and is addressing her other difficulties. The only way she will achieve the first of these objectives is by hair tests which cover the period from the present to the proposed future hearing. Quite how those are to be arranged I would leave to her excellent legal team. All I would say is that, in my judgment, such tests would be a proper disbursement on her public funding certificate; there is no excuse for her not to have them.

73. As we are setting aside the Recorder's order of 12 July 2007, I see no alternative, speaking for myself, but to return to the order of 15 December 2006. Whether or not the parties wish to revert to those arrangements by means of a shared residence order is something on which, speaking for myself, I would be prepared to hear argument, but in principle, it seems to me that KM, E and DE should continue to reside with their father during school term time, and that the pattern of contact which existed under the order of 15 December 2006, to which I referred earlier, should be reinstated pending the re-hearing in December.

74. I would, accordingly, allow this appeal and set aside the Recorder's order. I would direct that the parties' residence and contact applications should be reheard by HHJ Cryan on 3, 5, 6 and 7 December 2007 and that HHJ Cryan should give directions on the case in the week commencing 22 October. I would record that any hair tests undertaken by the mother should be a proper disbursement on her public funding certificate, and that in the interim, the arrangements for the children should revert to those which existed under the Recorder's order of 15 December 2006.

75. Finally, I cannot leave this case without expressing a short word about DI. I am deeply worried about DI; so should her parents be. She is a child who is in danger of being robbed of her childhood. I have great anxiety about her care over the next few months, and I have no doubt that one of the matters which will greatly concern HHJ Cryan on the re-hearing will be DI's progress between now and December. This will, of course, include her school attendance record and her progress at school. This case, in my view, has focused far too long on the mother, and the mother's difficulties. It is high time that proper attention was paid by the mother in particular to DI's difficulties. If she shows that she can address these, and take advice about them, she will have taken a major step forward. Treating the child as an emotional prop, stealing her money and failing to get her to school are just three of the many disservices this mother has done to DI. It is now for her, in my view, to show that she can meet DI's needs.

Lord Justice Keene:
76. I agree that the appeal should be allowed and with the order proposed by my Lord.

Lord Justice Thomas:
77. I also agree.

Order: Application granted.