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M (Children) [2014] EWCA Civ 1753

Parents successfully appeal against the making of a special guardianship order in favour of foster carers

Following concerns about the mother's misuse of alcohol and the father's inability to control his temper, the two subject children were removed from the parents to foster carers where they remained throughout the proceedings and to whom special guardianship was ultimately granted. A parenting assessment of the parents was completed and resulted in a plan for gradual rehabilitation of the children to the parents' joint care. During this rehabilitation process, there were incidents of the mother drinking and one reported incident of verbal abuse between the parents. This incident of domestic violence ended the rehabilitation plan and the father separated from the mother. Each parent then put themselves forward to care solely for the children.

A child psychologist provided three separate reports in the course of the proceedings, the first supporting the rehabilitation plan. The subsequent two reports however provided a pessimistic prognosis that either parent would be able to care for the children. The psychologist concluded that the father had a limited understanding of a child's emotional needs and had difficulties in providing consistent, reliable parenting. Concerns were also raised by the psychologist, social worker and Guardian that the elder child stated that she did not want to be cared for by the father. Of note, at the final hearing the father's anger management issues were no longer a prominent factor.

Prior to final hearing the judge acceded to the father's application for further assessment, concluding that such an assessment was necessary. The original parenting unit completed this second assessment, albeit with different social workers involved. This assessment concluded that the father was not able to meet the children's emotional needs.  The judge was later highly critical of the second assessment on the basis that the author had not considered the first positive parenting assessment and was unable to explain why there was a change in the father's ability to parent. The judge concluded that the second assessment was inadequate and placed little reliance on it. The judge however relied on the final evidence of the social worker and the Guardian as well as the child psychologist. The judge adopted the professional's reference to the father's inability to provide "emotional attunement", although on two occasions stating that this was "an elusive concept". He stated that the father's ability to care for the child was a finely a balanced case but concluded that the children could not be cared for by him.
The judge stated that the mother's case had caused him less difficulty, relying on the psychologist's conclusion that there was a substantial risk of relapse in her alcohol condition.

A special guardianship order was made in favour of the foster carers. Both parents appealed.

McFarlane LJ endorsed Black LJ's judgment in Re: B [2014] EWCA Civ 1172 at para 66:
"The more finely balanced the decision in a case, the more exacting must be the judge's approach to the evidence, the more precise his findings of fact on pivotal matters and the fuller the explanation of his route to his determination."
McFarlane LJ agreed with the trial judge that the father's case was finely balanced and accordingly there was a need to give a precise evaluation of the advantages and disadvantages for the children being place with the father. However he concluded that the judge failed to do this, instead simply stating his conclusion which lacked the necessary analysis and failed to address the welfare checklist in full which would have assisted such analysis.  The analysis by the trial judge was accordingly unreliable and insufficient to justify an order which permanently separated the children from the care of the father.
McFarlane LJ went in to consider the mother's appeal. Although it was accepted that the judge was entitled to rely upon the potential risk of relapse into drink, he had not conducted a proper analysis, instead relying only on the statistical figures provided by the psychologist.

Accordingly, both parents were granted permission to appeal and their appeals allowed. The matter was returned to be heard in front of a different Circuit Judge. Further submissions would be heard, if requested, as to a need for further parenting assessment of the father.

McFarlane LJ commented on the length of time in which it took for judgment to commence, two months after the close of oral submissions and the length of time for judgment to be completed, a further three weeks thereafter due to insufficient time at court on the first day of judgment. This three month judicial delay had particular significance  given the father's application at final hearing that further time (approximately 3 months from the time of oral evidence being heard) be given for him to complete work by way of video interactive guidance, was refused by the judge on the basis that it was outside the children's timescales.

Summary by Laura McMullan, barrister, Coram Chambers



Neutral Citation Number: [2014] EWCA Civ 1753

Royal Courts of Justice
London, WC2A 2LL

Thursday, 27 November 2014

B e f o r e:





DAR Transcript of the Stenograph Notes of 
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Mr P Hepher (instructed by Freemans) appeared on behalf of the Appellant Father
Ms E Beer
(instructed by Bretherton) appeared on behalf of the Appellant Mother
Ms F Choudhury (instructed by Herts County Council) appeared on behalf of the Local Authority
Mr J Foster
(instructed by Duncan Lewis) appeared on behalf of the Children's Guardian 

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1. LORD JUSTICE McFARLANE:  Earlier this year at the conclusion of care proceedings with respect to two children, His Honour Judge Serota QC made special guardianship orders in relation to the children which effectively secured their continuing placement with the two foster carers provided by the Local Authority who had been responsible for their care for some 2 years prior to that time. 

2. The hearing that we have now conducted is a full hearing of applications by the father on the one hand and the mother on the other, they having now separated, for permission to appeal against the judge's determination. 

3. The background to the case is detailed and I do not intend to descend to the full extent of that detail in this judgment, but it is necessary to explain one or two matters. 

4. First of all, the description of the two children.  The eldest is a girl, G, born on 17 February 2006 and therefore now aged 8 and 3/4 years.  The younger child is a boy, E, born on 4 October 2009 and therefore now just over 5 years of age.  The mother of both children originally is from Lithuania and is aged in her mid 40s.  The father is the biological father of the younger child, E, but he is the adoptive father of the elder child, G, she having been born as a result of a relationship that the mother had with that child's father.  The adoption, as I understand it, was achieved when G was only 1 year of age and effectively the father has been her adoptive father for all her childhood.  The father originates from Moldova and he is aged in his mid 30s. 

5. The circumstances which led to the Local Authority commencing care proceedings were generated by two aspects of the relationship of these parents which in combination resulted in home circumstances which were toxic on occasions and very much to the children's detriment. 

6. The two factors, and they may have been interlocked with each other in a sense that one may have generated the other and vice versa, were that the mother had developed a substantial history of alcohol abuse and regularly consumed alcohol so that her ability to care for the children and act in a rational manner towards her partner was heavily compromised.  The father for his part has difficulty in managing his anger and would on occasions resort to violence. 

7. It is all too easy from that short description to understand how on occasions life in the family home was not at all conducive to the welfare of the children. 

8. The children were removed from the care of the parents on 8 May 2012    and I stress that date; 2012, 2 and half years ago    under interim care orders.  They have remained in foster care I think for all, if not then a short time short of all, of the time with the carers who now are their special guardians. 

9. Proceedings moved on, albeit seemingly at a very slow pace.  Assessments were undertaken and in particular, the in house family assessment team, FAST, within the Local Authority conducted a parenting assessment of both parents.  That assessment commanded the respect of all parties including the Local Authority and guardian and was positive in terms of its description of each of the two parents' ability to be parents to the children when (a) the mother was sober and (b) the father was not angry.  The conclusion of the assessment process was that there was enough of a positive feature in this family for an attempt at rehabilitation to be undertaken. 

10. Thus it was that the court endorsed a rehabilitation programme commencing in January 2013.  During that programme, the children's time with the parents was increased and my understanding is that by the middle of March or early April, it was anticipated that the children would be staying overnight with their parents. 

11. Undoubtedly that process would have been stressful.  It is now acknowledged that the court proceedings established that the mother sadly succumbed to drink in March on a number of occasions.  This generated concern and anger on behalf of the father and in particular, there was an incident in March 2013 where there was some element of violence and certainly a vivid argument between the parents which led to the social workers abandoning the rehabilitation plan. 

12. Subsequently the judge, at a hearing in November 2014, conducted a fact finding examination to determine what had gone on in March.  He concluded that the altercation was limited to the use of language and did not include any overt or very worrying violence on the part of the father which had been part of the Local Authority's concern. 

13. The result of what had happened in March was to put an end to the idea of rehabilitation of the two children back to the parents living together.  The father then separated from the mother.  Inevitably, there was a certain degree of skepticism on the part of the Local Authority as to whether that separation was permanent, but by the time of the final hearing before the judge which took place in February 2014 all parties accepted that the couple had indeed permanently separated.  The father was said to have a new girlfriend and had issued divorce proceedings.  So the position before the judge was that each of the two parents was putting themselves forward as a single parent to take on the care of the two children. 

14. The court had the benefit of an expert jointly instructed by each of the parties, a clinical child psychologist, Dr Derry.  He had provided three separate reports in the proceedings.  The earliest report had been favourable to the parents and had supported the rehabilitation plan that was attempted in early 2013, but subsequently he came to offer a more pessimistic prognosis for either of the two parents being able to care for either or both of the two children. 

15. In the case of the father, Dr Derry identified a potential for the father to seek to behave with and towards the children which indicated that he had a limited, or an erroneous, understanding of that child's emotional needs at any particular point in time.  There was a disconnect, to use a word that I have chosen rather than one that the expert used, between what was needed in terms of entirely appropriate caring in an emotional sense of the child at any particular time and the father's presentation and behaviour towards the child. 

16. It must be remembered, however, that all of the observations of the father and for that matter the mother with the children once the children were removed in May 2012 were during supervised contact sessions, the children having their primary base with the foster carers. 

17. There was also a concern that the father had difficulties in setting boundaries for the children, was not consistent in establishing meal times for them and would in other ways fail to deliver consistent, reliable and generally ordinary parenting for the children in a way that they could simply enjoy and not become anxious about. 

18. A further concern identified by Dr Derry and indeed the social worker and the children's guardian was that progressively as time went by the elder child, G, was indicating that she did not wish to be placed with her father and in her father's care.  She was content to remain in her current placement.  From time to time she also made adverse comments about wanting to have contact with her father.  The younger child, E, no doubt because of his age, was not expressing views of that sort. 

19. Looked at as factors individually and together, and coupled with his view that the relationship of G and the father was one that no longer displayed a firm and secure and positive attachment, Dr Derry concluded in his subsequent two reports that there should be no attempt to place the children in the father's care. 

20. Concern about the father's anger management had ceased to be a prominent factor by the time of the hearing before the judge, he having undertaken some courses to moderate his behaviour in that regard and of course the trigger point provided by being in a close relationship with the mother had evaporated. 

21. In the lead up to the final hearing, those acting for the father applied for permission to commission a fresh parenting assessment conducted by an independent social worker. 

22. The judge dealt with that on 18 November 2013.  We have been told by Mr Hepher, counsel who represented the father below and who presents his appeal application before us today, that in the course of analysing that application the judge concluded, as he had to if he was going to grant it under Part 25 of the Family Procedure Rules 2010, that such an expert report was "necessary" for the court to reach a final determination in the case. 

23. Once the judge had announced that conclusion, the question arose as to who would pay for that report.  Given that it was "necessary", consideration focused upon the Local Authority being responsible at least in part for remunerating the expert.  We are told, and I think it is accepted at the Bar, that that led to a reappraisal of the Local Authority's position.  As an alternative they offered, and it was an offer which was accepted by the judge, to have the fresh parenting assessment conducted by the same unit, FAST, within the Local Authority albeit by different social workers.  That is what was undertaken. 

24. That report was before the court at the final hearing and it was the subject of substantial criticism on the part of the father by Mr Hepher; criticism which was almost entirely accepted by the judge.  I am not going to descend to detail about those criticisms, but in short terms a principal concern about the validity of the FAST 2 report was that it did not consider the FAST 1 report. 

25. The judge was perplexed as to that and understandably so, given the positive description of both of the two parents in the FAST 1 report, in particular the parents' ability to show empathy towards the emotional needs of the children and to meet those emotional needs.  Given, as it was, the contrary conclusion of the FAST 2 report that the father was not able to meet the children's emotional needs, the judge was highly critical of the second social worker for not appraising herself of the first report's conclusions and not being in a position to explain why there had been an apparent deterioration or change in that important aspect of parenting in the 18 months or so that had elapsed between the two assessments. 

26. There were other matters of criticism concerning the detail and the general approach of the two apparent authors of the report, but the bottom line is what is important.  That is that the judge concluded in express terms in his judgment that the FAST 2 report was "inadequate."  He consequently placed "little reliance" upon it. 

27. The hearing, however, progressed in February, notwithstanding that unsatisfactory state of the evidence.  By the time it came on, the court had achieved additional material that had not been before it at the November hearing in terms of a further report from Dr Derry, the final report of the guardian and a final statement from the children's social worker. 

28. I am dealing with the father's case at the moment.  The judge summarised in the course of his detailed summary of the evidence the evidence from those three professionals, Dr Derry, the social worker and the guardian. 

29. It is apparent that a label became current within the proceedings to describe in general terms the matter that most concerned each of those three professionals as to the father's ability to parent.  The label is "emotional attunement."  The judge adopts that label and in the course of his judgment describes that as being the significant deficit in the father's parenting, but it is right to observe that on two occasions the judge expresses a certain difficulty he has in understanding just what is meant by "emotional attunement". 

30. In the first paragraph of his judgment, the judge says this with respect to that factor:

"I find [it]somewhat of an elusive concept and difficult to grasp."

Later in the judgment, the judge returns to the same point and effectively once again repeats that he finds this to be "an elusive concept."

31. In the relation to the father's case, the judge used most of his judgment to deal with the factors that he considered to be important, but at this stage before turning to those factors it is necessary to explain something about how the judgment in its final form came to be generated. 

32. The judge concluded the oral hearing in February 2013 following what I think was a 3 day hearing.  The parties were encouraged to provide written submissions prior to a hearing on 6 March when they anticipated judgment would be given.  However, on 6 March, rather than giving judgment, the judge heard further oral submissions from the parties and judgment was adjourned to be given on 14 April. 

33. On that day, the judge invited the parties in at an early stage in the court list, indicated that he had other cases to deal with and asked whether the lay parties would welcome being told what the outcome of the case was at that stage with the reasons to follow later in the day.  The parties accepted that invitation and the judge therefore delivered orally at that stage what has become paragraph 1 of the written judgment:  

"I rule out the mother because the risk of her relapsing is too great on the evidence that I have heard, particularly from Dr Derry.  So far as the father is concerned, I have found it exceptionally difficult because the issue relates to his lack of emotional attunement which I find somewhat of an elusive concept and difficult to grasp but on the other hand in the light of the very clear evidence from Dr Derry and from the guardian that a return of the children to the father particularly in the light of the current relationship between G and the father is likely to cause significant emotional harm to the children in the long run, I feel constrained to accept the local authority's case and to make a care order with a care plan of foster care hopefully growing into special guardianship, and I accept the guardian's views on contact   I think it should be each parent four times a year.  I am afraid that is the best I can do at this stage but I want to stress the mother's case has not caused me any particular difficulty but the father's case does, and I will say it   if I remember   that I found it a difficult and finely balanced case."

34. Having said those words, the judge then adjourned and later in the day on 14 April began to deliver the remainder of his judgment.  However, time limits were such that he only progressed as far as the end of what is now paragraph 34.  The case was adjourned.  The parties returned on 2 May and the remainder of the judgment was given. 

35. We now have what purports to be a full transcript of the judgment.  However, it has been explained to this court that unfortunately the tape recording machinery at the court ceased to function after the end of paragraph 49 and that paragraphs 50 to the conclusion of the judgment at paragraph 82 have been complied by a combination of counsel's note being put before the judge and the judge drawing matters together no doubt with the assistance of any notes he then had.  That process is plainly unsatisfactory in mechanical terms. 

36. We have been invited by counsel for the guardian to accept that the judge from paragraph 50 onwards will have been more detailed in the number of words that he used and more nuanced in what he said.  For my part, I accept that may be the case, but it is simply not possible to enter into conjecture as to what the judge did or did not say.  I approach this appeal on the basis that the judge now has taken "ownership" as it were of the transcript that we now have, he having gone through it with counsel's note and perfected it as he clearly has done.  We must evaluate his judgment on the basis of the typed script that we have in front of us. 

37. As well as the mechanics of the process being unsatisfactory, I am bound to say that the timescale on which the judgment was prepared and then delivered is regrettable.  The judgment came to be commenced some two months after the close of the oral evidence.  It was not possible to complete giving judgment on that day, but a further three weeks or more went by before the judge was able to conclude the matter.  One has to question why it was not possible for the judge on some occasion immediately after 14 April, albeit perhaps in an empty court room with a tape recorder turned on, to complete the process of enunciating his judgment so that it could be circulated to the parties. 

38. The fact of the delay was regrettable as I have indicated, but it also plays a part in one of the substantive points made by counsel both for the father and indeed for the mother on this appeal.  It may be helpful if I mention that point at this stage. 

39. The father had identified a resource that might assist him to interact with his children in a way which caused less concern to Dr Derry and other parties.  The process is one that is now fairly common in children cases and in these proceedings travelled under the label "Video Interactive Guidance". 

40. In short, the father would undertake a series of I think, some ten one hour sessions with the children which would be recorded on camera.  He would then sit at his leisure, as it were, on an occasion after each session with a professional to watch himself on the video screen with the children and to receive advice as to what had gone well and what had gone not so well in the hope that he would learn from his mistakes, if I can put it that way, in subsequent sessions. 

41. A resource had been identified for that work to be undertaken and it was possible for that work to start immediately after the February hearing. 

42. The judge at paragraph 70 of his judgment rules that out in these terms:

"Even if the VIG work is successful, it will result in delay and cannot lead to a complete cure for the father's deficits.  Completion of the course would in any event take the decision outside the children's timescales as would other interventions even if successful, and that is a big if.  I reject the application for this further work."

43. The point made by counsel for both parents is that the reference to the children's timescales is hard to understand in this case.  The children were not going to move anywhere unless they were to move at a subsequent occasion to be rehabilitated to one or other of their two parents.  This was not a case, unlike many in the Family Court, were there was a pressing need to get on and decide the case because everyone knew the children could not stay in the foster home in which they were living and had to be placed elsewhere. 

44. The second and more powerful submission that is made, in my view, is that for the judge to consider that three months was too long in the children's timescale to allow the father to undertake the VIG work, but then himself to take almost precisely that time in delivering the judgment indicates that the concern about the children's timescale was not as pressing as it seems to have been when the judge came to utter paragraph 70 as he did on 2 May.  I digress simply to deal with that point in that way for convenience. 

45. The judge's approach to the structure of his judgment was to spend the first 65 paragraphs summarising the evidence that he had heard.  At paragraph 66, he dealt with the relevant principles of law.  No counsel takes issue with what the judge said in that paragraph.  In particular, the judge expressly referred to the now well known decision of this court Re: B S [2013] EWCA Civ 1148 in these terms, holding:

"That the court must consider all realistic options holistically and together with proper evidence and analysis for and against each option."

46. The submission made by the parents to this court is that despite that self direction by the judge, he singularly failed to deliver such an analysis. 

47. The judge then moves on at paragraph 68 until the conclusion of his judgment to set out the reasons for his decision.  So far as the father is concerned, the main observations that he makes in that regard are at paragraphs 69 and 70 in the following terms:

"69.  The father's case is much more troubling.  I have sympathy with Mr Hepher's criticism of the quality of the FAST 2 assessment.  I would not necessarily go as far as he in his criticisms of FAST 2, nor indulge in this purple prose, but I accept the report is of poor quality.  I do not require a further report as I have the evidence of Dr Derry, the social worker, Ms Warren, and the Guardian which sufficiently satisfy me that there are significant deficits in the father's care.  I am satisfied there is a lack of emotional care and emotional attunement, albeit this is a somewhat elusive concept.  It is wrong to say he follows Moldovan traditions in relation to violence to women being acceptable.  Whatever once may have been the position, the case is now very different.  The father holds wholly conventional views on the inadmissibility of such a conduct.  However the Guardian, Dr Derry and Ms Warren hold the view that the father is unable to engage both children on a consistent basis, that he shows an inability to take advice on board and an inability to display equal treatment of the children and the effect of this on G.  He shows an inability to see the difficulties in his relationship with G and is thus unable to consider the reasons for this and to address them.  Inability to how the necessary attunement is evidenced for example by his insensitivity providing too much food and too many toys whereupon he didn't enquire whether they needed the food and toys.  Toys and food may not seem significant concerns on their own but together with others they illustrate lack of emotional attunement.  The children's needs are not enquired about.  He has been unable to internalise what he has learned.  On account of the children's exposure to domestic violence and removal from their parents, these children need enhanced care and sadly the parents cannot provide this.  I accept the evidence of Dr Derry.

70.  I discount the risk of further abuse and domestic violence.  It is concerning the father cannot understand his difficulties in his relationship with G.  The current breakdown in the relationship with G is recognised by Dr Derry as the father's main stumbling point.  Even if the VIG work is successful, it will result in delay and cannot lead to a complete cure of the father's deficits.  Completion of the course would in any event take the decision outside the children's timescales as would other interventions even if successful, and that is a big if.  I reject the application for this further work."

48. The judge then when on at paragraph 72 to list five other factors, some in favour of the father, particularly noting the very great efforts that he had made and the progress that he had achieved in anger management, but noting that "emotional attunement is still lacking."

49. The judge goes on to look at options other than making a special guardianship order.  He expressly considers placement with either of the two parents under a supervision order, notes that such a placement would obviously be culturally, ethnically and religiously appropriate for the children, more so than is the case in the foster home which is as I understand it a white English family. 

50. Then he comes to state his final conclusion as to the father's case in these terms at paragraph 77:

"The father's case at the end of the day is finely balanced.  I have significant concerns about the second FAST assessment.  In the past he has been good enough, committed and he loves them.  The father has not shown good enough emotional care, however.  I have found the concept of emotional attunement somewhat elusive.  At the end of the day the balance falls against the father on account of the risk to the children because of their need for enhanced care and the father is unable to give this."

51. I should have said shortly before that paragraph the judge deals with two aspects only of the welfare checklist, namely the wishes and feelings of the children, to record what I have already said about that, and the children's physical and emotional needs which is that in the judge's conclusion they required "better than average care, reparative care, because of the deficiencies in their past care."

52. So far as the mother is concerned, the judge's consideration of her case was all together much more brusque.  As is indicated in paragraph 1 to which I have already made reference, he stressed that the mother's case had not caused him any particular difficulty and that he ruled her out because of the potential for relapse in her alcohol condition. 

53. Again, although he in the course of his resume of the evidence deals with the mother in some greater detail and notes in addition to the alcohol problem that she has on Dr Derry's evidence "attachment difficulties" which are likely to recur in the future, the totality of the judge's reasoning for ruling her out is contained in paragraph 68 in the judgment in these terms:

"Reasons for my decision.  I am satisfied the relationship between the parents is over.  The father has a new girlfriend.  The mother has made a lot of effort undoubtedly for which she is to be highly commended and she has done a great deal of work.  The question relates to the risk of relapse.  The mother was candid regarding her past and current difficulties.  Sadly according to Dr Derry the risk of placing children with her is too great.  The prognosis is that over sixty per cent of those who undertake alcohol treatment relapse.  The figure is seventy to eighty per cent risk, if there is no treatment.  In these circumstances I cannot be satisfied she can provide adequate care because the risk of relapse is much too high.  I cannot contemplate more delay in determining the proceedings to monitor the Mother's abstinence because the delay has already been prejudicial to the children."

54. The submission made by Ms Beer on behalf of the mother is that the only point being made here is the risk of relapse and if there were other deficits mentioned in the evidence of Dr Derry or other professional witnesses, the judge does not utilise those factors in his analysis. 

55. The parents issued notices of appeal promptly.  The matter came on paper before Ryder LJ.  He was concerned as to the structure of the judge's judgment and concerned as to whether the judge had properly engaged in weighing up the options for each of the two children and then explaining his decision in terms which were compliant with Re: B S, but Ryder LJ held back from granting permission to appeal.  Rather, he adjourned the permission to appeal applications to this court with the full appeal to follow if granted. 

56. Pending this hearing, each of the parents has applied to adduce further evidence.  That was dealt with initially by Macur LJ at an earlier hearing and then finally by this court earlier today.  The outcome is effectively each application to adduce further evidence has been refused. 

57. The court heard the application on behalf of the father rather ungallantly before that of the mother.  I therefore turn to summarise Mr Hepher's submissions in the following short terms. 

58. His principal submission is based upon the court's tenacious adherence to the term "emotional attunement".  He questions what that term means.  He questions the judge's grasp of what that term means and he questions whether what is described as possibly underlying that label is sufficient ground to justify the permanent removal or non return of these two children to their father's care. 

59. Secondly, he criticises the analysis undertaken by the judge as the judge came to describe it in the course of his judgment.  In particular, he submits that if, as the judge on two occasions came to describe it, this was a "finely balanced case" the onus on the judge to explain with full particularity why the case was finely balanced and why he had decided the balance should come down at one side of the line or another was all together of the most importance. 

60. He was able to support that submission by reference to a recent decision of this court in Re: B [2014] EWCA Civ 1172, the main judgment in the case being given by Black LJ, but her judgment was one with which the other two members of the court, Tomlinson LJ and myself, agreed.  The point being made here is short. 

61. At paragraph 66, Black LJ said this:

"The more finely balanced the decision in a case, the more exacting must be the judge's approach to the evidence, the more precise his findings of fact on pivotal matters and the fuller the explanation of his route to his determination."

62. Mr Hepher's submission in short terms is that sadly and unfortunately on this occasion Judge Serota failed to meet that exacting standard. 

63. In the event, Mr Hepher submits that the judge has fallen back on relying upon the professional and expert evidence of Dr Derry, the social worker and the guardian, but without fully understanding what it was that they were describing in terms of emotional attunement given the judge's candid description of his difficulty in grasping what was meant by that concept. 

64. Thirdly, Mr Hepher points to the consequences of the judge having granted the direction for a further parenting assessment in November and yet finding that that assessment, once it came to be considered, was inadequate.  The submission made is in short terms.  The judge concluded in November in accordance with the Rules that a fresh parenting assessment was "necessary."  He found the assessment as provided was "inadequate" and that therefore there was a lacuna in the evidence on a crucial matter and he should not have relied upon other evidence in the case to make good the gap. 

65. Mr Hepher's submission is that what should happen now is that there should be a proper parenting assessment of the father and the case, if we allow the appeal, should be remitted for further hearing. 

66. The mother's application is understandably, and for reasons which arise from the judgment, on a totally different basis.  She has to meet the finding that the judge made about her potential for relapse.  As I have indicated in the words of the judge at paragraph 68, the judge accepted the statistical analysis of Dr Derry which was that over 60 per cent of those who undertake alcohol treatment unfortunately end up relapsing into alcohol consumption at some stage in the future. 

67. Ms Beer submits that that analysis by the judge was inadequate.  This case was not to be decided on statistics.  The judge had to form his own view of the mother and decide whether she was more likely to fall into the 40 per cent of folk who do not relapse or the 60 per cent who do.  Simply to rely on the figure and hold that that risk is "much too high" as the judge did was to abdicate his role as judge when he had sat in the courtroom and been appraised of a comprehensive view of the mother and in particular had seen her give evidence and will have heard her, as he must have done, describe her approach to abstinence which had been in place since June 2013. 

68. So in different words and with different factors in mind, she effectively makes the same submission as Mr Hepher that this was an inadequate analysis by the judge and must be set aside. 

69. Secondly, the mother seeks to challenge the judge's determination as to contact.  Any contact was going to have to be set at a low level, there being no plan for the children to go home to either parent.  The mother sought six visits a year.  The Local Authority advised that there should be only three and the judge chose four.  His reasoning is in one short paragraph in the judgment.  Again, Ms Beer submits that there is inadequate analysis despite the fact that the issue the judge had to decide was as narrow as the one I have described. 

70. The applications for permission and obviously the appeals if permission is granted are contested by the Local Authority and by those acting on behalf of the children's guardian.  We have heard submissions by Ms Choudhury who appeared for the Local Authority below and appears before this court on behalf of the social work department and secondly by Mr Foster who appears on the appeal for the guardian, but I do not think appeared below. 

71. Their task has been to stand up to the judge to persuade this court that albeit that the judge's conclusions are expressed in relatively short terms at the very end of the judgment, the judge was clearly cognisant of all of the relevant factors and detail in the case because of his summary of the evidence which forms the major part of the earlier paragraphs. 

72. They submit that the judge, contrary to his indications of difficulty in grasping what was meant by emotional attunement, did in fact understand what that meant because he had been able to drill down to the factual details that were relied upon by Dr Derry and the other professionals. 

73. We have been taken to examples in the contact notes and elsewhere where it is said one or other parent, particularly the father, has behaved in a way which shows a lack of empathy or a lack of insight or a lack of sensitivity into the children's emotional needs. 

74. For example, at one contact session if not at others, the father has arrived with what the social workers considered to be far too many toys for the children.  It seems that either E is interested in toy trains or the father feels he ought to be interested in toy trains.  On at least one occasion, the father has arrived with a large quantity of toy train paraphernalia including no less, it was said, than 15 engines.  The criticism made is that this resulted in the child being confused, overwhelmed and unable to decide what to do because the father failed to understand the impact of what he had done. 

75. Similarly, with respect to food it is said that on occasions the father has attended intent on feeding the children from the substantial quantity of food that he has brought with him, notwithstanding that he must have known that they will have had breakfast and may relatively shortly before have seen the mother on contact and had food from her. 

76. Other examples are given of more emotional content.  On one occasion the father questioned G at a contact session in July and said in terms that the child should not tell the judge that she did not want to live with her father and that she should understand that if she said such things then she would not be able to return to the father's care.  The note describes how the father hung onto that line of conversation with the child despite being advised not to by the guardian who was supervising the contact at that stage.  The point being made is that the father simply seems to be unaware of the difficult position in which those sorts of conversations would place this 8 year old child.  Other examples were given. 

77. In the course of submissions, my Lord Vos LJ was driven to describe, albeit as he said as someone not steeped in day to day experience of family cases, the examples being given as of "trivial" quality.  In response to that submission, counsel, Mr Foster submitted that whilst it may be possible to identify one or more of the specific examples in that way, one had to look at the totality of what was being put before the judge as being behaviour which had a common theme to it delivered at specific occasions over the course of a substantial period of time. 

78. My Lord also expressed concern that the label "emotional attunement" had been used by the Local Authority and the professional witnesses as a catch-all label when what was required, certainly when the judgment came to be delivered by the judge, was a complete analysis of the detail that lay below the label and the positives and the detriments of the father's parenting skills. 

79. I for my part felt a very clear resonance with those two separate observations made by my Lord during the course of the hearing. 

80. In opposing the appeal, Mr Foster dealt specifically with the parenting assessment point that Mr Hepher had so effectively made.  Mr Foster's submission was that in the end the order made by the court was not one that engaged Part 25 and therefore the judge had not needed to find that the FAST 2 report was "necessary."

81. On further consideration, Mr Foster accepted that, given that the judge had come to that conclusion at an earlier stage in the same hearing, the point was made good, but he went onto submit that whilst it may have been seen as "necessary" on 18 November because of a deficit in the "other evidence" that was then available to the judge, the position had significantly changed by the time of the final hearing because by that stage the judge did have the last report of Dr Derry, the guardian's final report and the social worker's final statement.  Of course, by the time the oral hearing had concluded, the judge had also had the oral evidence of each of those parties and of the parents. 

82. Mr Foster therefore concluded his submission on this point by saying the judge was entirely justified in saying that adjourning at that point at the end of the hearing for a further parenting assessment was not justified, the other evidence having provided sufficient for him to make his decision. 

83. Having described the background and the arguments principally made by the protagonists before this court, it is now necessary to draw this judgment to a conclusion. 

84. The issue that the judge had to determine was not at the very highest end of issues that fall to be considered by Family Courts where the outcome might be a very young child going off permanently to be placed for adoption, but the issue in this case falls not too far short of that.  In relation to both children who are still relatively young, the consequences of the judge's order is that, unless there is a significant change in the circumstances of the placement or of the parents, they are going to be looked after by this couple, their foster carers, for the rest of their childhood.  It was, therefore, necessary in my view for the judge to give particular care to his analysis of the factors that were in play in this case. 

85. The judge was right, in my view, insofar as the father's case is concerned to regard this as a finely balanced decision.  It was finely balanced because there was much good about the father and his ability to be a single parent to these children.  He loved them.  He was obviously very, very committed to taking on the role of parent.  The first FAST assessment report says in terms that it was likely that he could do it, not only physically but as their principal emotional carer. 

86. Given that positive description, it was necessary for the judge to understand what if anything had happened from that high watermark of the FAST 1 report to the situation that was being described before him at the final hearing. 

87. One could ask rhetorically "how can a man who is able to show empathy and sensitivity to his children able to lose that facility, which would seem to be innate in a person's make up?"  It may be that the passage of time that a period in foster care, that a period of week on week supervised contact session erodes the ability of a father in that very artificial setting to display how he would behave towards his children were he to be their primary carer.  But that is clearly conjecture.

88. The judge does not consider that aspect.  All the judge does have is the bald reports of how the father has behaved and then the expert's conclusions as to the deficit that he must have if he does behave in that way. 

89. I accept the submissions of Mr Hepher that the term "emotional attunement" gained an unhelpful currency in these proceedings.  It became a label and the judge might be said to have simply endorsed the label without necessarily understanding what lay beneath it.  That concern is very much underlined, in my view and in my analysis, by the fact that the judge twice says that he is not sure he has fully grasped the concept. 

90. There was a responsibility on the judge, to use the words of Black LJ in Re: B, to give a very precise evaluation of the pros and cons here and to explain why, in a finely balanced decision, one point or another was pivotal to move the case away from the father.  The judge has simply failed to deliver such an analysis in the judgment that we have.  He simply states his conclusion. 

91. The fine nature of the balance should have led the judge to fall back on first principles.  It would have been helpful had he properly deployed on this occasion a full analysis under the template of the welfare checklist.  Had he done so, he would have been able to identify the losses to the children of being brought up by people who are strangers to them in terms of familial relationships, albeit now extremely well known to them, they having been the carers for the last 2 and half years.  We simply do not have that level of analysis from the judge. 

92. So for the reasons that Mr Hepher principally has advanced, but also endorsed by Ms Beer in her submissions, I consider that this analysis by the judge is unreliable and insufficient to justify an order that permanently separates these children from the care of their father. 

93. The case for the mother in terms of the factors in play is entirely different.  The judge may have been entitled to rely upon the relapse into drink, but Ms Beer in my opinion has made good submissions insofar as they are on exactly the same theme as in Mr Hepher's, namely that the judge simply has not conducted a proper analysis. 

94. The only analysis that he gives is in the ten lines in paragraph 68 and that is really no more than a endorsement of the statistical figure given to him by Dr Derry.  That is not enough, in my view, to explain to this mother and to this court and for that matter to the children in years to come why it was necessary for these children to be separated from their mother. 

95. So despite the arguments so clearly put by Ms Choudhury and Mr Foster to the contrary, the disquiet that I have about the process undertaken by the judge in this case is such that I am driven to conclude that permission to appeal should be granted to each of the two parents and that the appeal in each of the two cases should be allowed. 

96. The consequence of that, Mr Hepher accepts and I think Ms Beer implicitly accepts, is that it is not for this court to determine now where the children should live.  Nothing I have said in this judgment is intended to indicate that the outcome chosen by the judge is in some way "wrong."  It may in the end by the right answer.  Alternatively, placement with the mother or with the father may be the answer that best meets the children's needs. 

97. That will all now have to be looked at again in the light of the state of the evidence as to the parent's and the children's circumstances today.  That means that in the mother's case, if, as I accept at this hearing is the case, she has remained abstinent from alcohol now for some 17 months that factor can be deployed in her favour at the hearing which now has to take place. 

98. This is a case that should not return, in my view, to Judge Serota.  It is, however, a case that is likely to be able to be conducted before a Circuit Judge.  For my part, I would direct that the case be referred to the local Family Division Liaison Judge for allocation. 

99. We have been invited to consider granting today a direction about whether a parenting assessment should be granted.  I am bound to say this is not a matter that my Lords and I have discussed.  It may be that we should hear further submissions on that point if it is a matter that Mr Hepher wants to press upon us at a later stage. 

For all the reasons that I have now given, my conclusion is the appeals are both to be allowed.

100. LORD JUSTICE JACKSON:  I entirely agree.

101. LORD JUSTICE VOS:  I also agree.