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Re H [2015] EWCA Civ 115

Date:24 FEB 2015
Law Reporter
(Court of Appeal, Black, King LJJ, Sir David Keene, 18 February 2015)

 Public law children
The full judgment is available below.

 The father’s appeal from final care order which stipulated that the father was not to have unsupervised or extended periods of contact with the children was refused. 
  Case No: B4/2014/2845
 Neutral Citation Number: [2015] EWCA Civ 115


 Royal Courts of Justice

 Date: 18/02/2015

Before :


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 Ms Kate Branigan QC & Mr Matthew Persson (instructed by Osbornes Solicitors) for the Appellant
 Ms Susan Jacklin QC & Mr Hugh Cornford (instructed by Devon County Council) for the 1st Respondent
 Ms Gina Small (Pro Bono) for the 2nd Respondent
 Ms Jessica Lee (instructed by Hartnell Chanot & Partners) for the Children’s Guardian

 Hearing date: 22nd January 2015

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 Black LJ 

 [1] On 23 July 2014, Her Honour Judge Robertshaw made care orders in relation to two children, T (a girl now aged 14) and C (a boy now aged 12). The children live with their mother (“the mother”). They have limited supervised contact with their father (“the father”), which generally takes place once a month for a period of one and a half hours. He is prohibited from having any indirect contact with them without the local authority’s consent.

 [2] The father appealed against the judge’s order with permission from Lord Justice McFarlane. He advanced a number of grounds of appeal but the main argument upon which he relied revolved around the judge’s treatment of the evidence of a clinical psychologist, Dr Gough, which it was said had been allowed to assume disproportionate importance in the determination of the proceedings.

 The history

 [3] The parties were married in 1999 and separated in 2011. Proceedings under the Children Act 1989 were issued in the spring of 2012. A contested hearing took place before Deputy District Judge Walker (a retired district judge) in December 2012. The arrangements for the children were then that they were spending seven days of each fortnight with the father and seven days with the mother. The district judge thought that the children should have one main carer rather than two. He therefore made a residence order in favour of the mother with contact to the father and approved the mother’s proposal that the children should spend nine days with her in every fortnight, leaving five days to be spent with the father.

 [4] A number of the observations that the district judge made in his judgment are of particular importance to the present litigation.

 [5] Some of those observations relate to the way in which the father had undermined the children’s relationship with the mother, in contrast to the mother who the district judge found had encouraged the children to be with the father. He said that the father had found it difficult in giving evidence to speak positively of the mother (§20) and said:

“§24 …. I am bound to say that I do think that father has, perhaps without realising it, undermined the relationship that the children have with their mother….”

 “§41 …. I do feel there has been a power imbalance here between mother and father. Father, perhaps unwittingly, has undermined the relationship that the children have with their mother and that is not in the children’s best interests.”

 “§44 …. It is important that the children rebuild their relationship with their mother….”

 [6] The district judge also said: “§28 The Guardian has some worries about how [the father] might react to the order that I am bound to make today. That does concern me too.”

 [7] The district judge did, however, remark upon the fact that the children were a credit to both their parents, referring to what he had heard and read about their schooling and commenting (§5) that “how they are getting on in some senses is perhaps a bit remarkable bearing in mind the clear disagreements there have been between these two parents since these proceedings started”.

 [8] Matters were soon before the court again. In April 2013, the mother applied for the father’s contact under the district judge’s order to be reduced on the basis that he was causing emotional harm to the children. She also sought the return of the children’s passports which it was then thought the father had kept.

 [9] The passport issue was dealt with by Judge Robertshaw at a hearing in May 2013. She heard evidence from both parents and found that the father had wrongfully retained the passports and given untruthful evidence about this. In fact, it emerged subsequently (as Judge Robertshaw recorded in her July 2014 judgment at §19) that, contrary to that finding, the passports were in a pocket of a rucksack which was in the mother’s possession.

 [10] The proceedings were protracted. It is not necessary to set out all the twists and turns here and I will restrict myself to those which have significance for this appeal.

 [11] In June 2013, the litigation was suspended whilst the family participated in therapeutic work with Dr Gough. When this did not go smoothly, in August 2013, Judge Robertshaw authorised the parties jointly to instruct Dr Gough to carry out an assessment of the parents and the children and provide a report for the court, with a view to a final hearing being held later in the year.

 [12] The report was eventually ready for filing in December 2013. In it, Dr Gough set out that, in her view, the children had suffered significant harm and were continuing to suffer emotional abuse. She advised that they and the mother engage in therapeutic work for a minimum of six months and that, to protect the children from further emotional harm, the current contact arrangements should be suspended, with the father having only supervised contact for a period.

 [13] Dr Gough said that she was extremely concerned about the impact of her conclusions on the father’s psychological state. She said that her recommendation was likely to increase his level of anger which she had already observed to be “intense, uncontained and projected towards [the mother], the guardian and these court proceedings”.

 [14] There was concern for the children if Dr Gough’s report was filed, as it was due to be, when the children were staying with the father. The guardian’s solicitor therefore applied, without notice to the other parties, for directions. A hearing accordingly took place in front of Judge Robertshaw on 6 December 2013 at which Dr Gough gave evidence about how she thought the father might react. She said that she expected that at a minimum he would place the children under great psychological pressure. In addition, she said there was a risk that his response would be to commit suicide, possibly involving the children in this.

 [15] On the basis of what she was told, Judge Robertshaw delayed service of the report until 13 December 2013 by which time the children would be back with the mother. She arranged for the case to come back before her on that day for further directions and ordered that the report was to be served on the parties at court. She gave the children’s solicitor and the guardian permission to discuss the case with the local authority (“LA”) and directed that a local authority representative attend the 13 December hearing. So that all parties should be aware of what had occurred, she directed that a transcript be prepared of the evidence heard on 6 December and of her reasons for making the order that she made.

 [16] On 13 December, Dr Gough’s report was duly made available to the parents and LA. It was recognised that the parents needed time to digest it so the case was listed for further consideration on 20 December. The father agreed not to have contact meanwhile.

 [17] There was, however, a significant change in the character of the proceedings on 13 December as the case moved, for the first time, into the public law arena. The court made an interim supervision order and ordered that LA prepare a report under section 37 Children Act 1989.

 [18] The section 37 report was not ready by 20 December 2013 but the directions given that day confirmed the case as a public law case. Interim care orders were made, but on the basis that the children would remain at home with the mother. There was to be no contact between the father and the children until after Christmas.

 [19] On 14 January 2014, the case came back to court. Amongst other things, agreement was reached about the next steps in relation to the father’s contact with the children and the judge refused the father’s application for permission to instruct a consultant forensic clinical psychologist to assess him. His proposal was that the assessment would consider what risk, if any, he posed to the children and the mother, whether the conclusions Dr Gough had reached in her report were “justified and/or correct”, and whether she had carried out her assessment in an approved way. The father’s application says that the expert would travel to the local area to assess the father “and if directed [the mother] and the children”. The judgment refusing the further assessment is not available to us; as I understood what we were told at the appeal hearing, the relevant tapes have been lost. There was no appeal against this order of the judge’s at the time it was made.

 [20] There were two notable events in February 2014. The father made an application for a residence order, and the children met the judge, in the presence of the guardian and the guardian’s solicitor.

 The final hearing commencing on 19 March 2014

 [21] The final hearing was due to commence on 19 March 2014. Six days before it, the father made an application to adduce further evidence. He was permitted to adduce recordings of telephone conversations with the children and their schools, and seven witness statements commenting favourably on him as a person and on his relationship with the children. He was not permitted to adduce a report from a psychiatrist who had examined him on 30 January 2014 for his employers (hereafter “the January psychiatric report”) and who, based on his assessment that day, had found no evidence of mental illness or of risk to others. No note or transcript of the judge’s judgment on this occasion is available either; once again, it seems that the relevant tapes were lost. Again there was no appeal against the order but the father continued during the final hearing to seek to have the report admitted. By this indirect means, it received an airing in the proceedings as I shall explain later.

 [22] The final hearing was lengthy. In total it lasted for ten days plus a further day for the giving of judgment. To start with, the father was represented by what the judge described as “a very experienced legal team” but later on he withdrew his instructions from them and accused them of unprofessional conduct. Thereafter he represented himself.

 [23] The father’s case fluctuated during the hearing. Until he went into the witness box to give evidence, he appeared to deny that his actions had been harmful to the children in any way. In his oral evidence, however, whilst continuing to deny that he posed any physical risk to the children, he told the court that he now understood that he had been influencing them against their mother, that he had caused them significant emotional harm by not creating the right boundaries, and that he had sent them inappropriate texts and emails. He accepted that he needed to improve his insight and said he was willing to engage in therapy if that was going to advance things positively for them all. He asked the judge to impose a further interim care order with the ultimate objective of a shared care arrangement for the children between himself and the mother.

 [24] The father’s closing submissions did not accord with his position in the witness box. He no longer accepted that his actions had been harmful. He said that he was the parent who had engaged with the children and the mother was not interested in anything other than a perfunctory role in their lives. In his submission, she was the one who was harming the children. He said that she was implacably hostile to him, that she was “a manipulative liar”, that she had made “foul and unfounded allegations” against him, and that there were no depths to which she would not stoop to exclude him from the children’s lives. He said that Dr Gough and the guardian were biased against him. He rejected the care plan because it was based on Dr Gough’s assessment and proposals and could not be anything other than fundamentally flawed. He was not prepared for contact with him to be limited whilst the children continued therapy sessions with Dr Nokes (a clinical psychologist) which had commenced on 18 December 2013.

 [25] In addition to what the father presented to the court himself by way of evidence and submissions, the judge also had before her numerous examples of the father’s communications to the children and others. She referred in her judgment (§110) to “[n]umerous text messages, emails and face to face comments” which were to be found in the bundle. She found that there was “clear evidence of [the father’s] insidious and subtle comments”. She referred to some examples specifically in her judgment. One was the letter that the father left for the children to find which implicitly encouraged them to keep running away to him. She also referred to transcripts of telephone conversations between the father and the children which were “littered with negative representations of the mother” (§112) and to examples of communications by the father with third parties in which he portrayed himself as a victim and vilified the mother (§113).

 [26] Given the nature of his case, it is surprising that when the mother gave her evidence, the father, who was then acting in person, declined to question her. The judge said in §98 that the father gave “every impression of showing total disinterest and disregard” for what the mother said in evidence except to “smirk” when she spoke about him never trying to work collaboratively with her.

 The judgment

 [27] The judge accepted Dr Gough’s assessments of the family as “sound, accurate and reliable” (§138). She found her evidence to be well reasoned, balanced, truthful and cogent. She found that the guardian had been independent and professional and that her analysis was sound. She found the mother an honest witness whereas the father was not.

 [28] In a passage of her judgment commencing at §144, the judge summed up her assessment of the father. She found that he had become transfixed with the idea that the mother was alienating the children from him and was intent on destroying their relationship with their mother and ensuring that the children live with him. He had, she said, “conducted a campaign to try to destroy any positive image T and C have of their mother” (§147). She took the view that his stance in his closing submissions showed how little genuine acceptance he had of the concerns of the guardian, LA and Dr Gough. She classed his stated change of stance in oral evidence as “nothing more than a further tactical manoeuvre” (§145) in the proceedings which he had sought to manipulate and control. He was unwilling and unable to accept criticism and adamant that he was right.

 [29] The essence of the judge’s conclusions about the father is encapsulated in §§146 and 152:

“146. [The father’s] actions and behaviours in relation to the mother and the harming of her relationship with the children have been conscious, deliberate and persistent. He was fully aware of what he was doing, but was oblivious and blind to the consequences of his behaviour on the children so far as causing them psychological, emotional harm is concerned. Although he realised he would be upsetting them, he did not intend to cause them the damage he has in fact caused them. His lack of insight into the impact of his own behaviours and actions are [sic] worrying and concerning, as is his confidence in his own righteousness. ….. ”

 “152. Since the decision of Deputy District Walker in December 2012, [the father] has deliberately and consciously sought to undermine and destroy the children’s relationship with their mother and to influence them against her to the extent that they and [the mother] have suffered further and significant emotional and psychological harm. [The father’s] actions during these proceedings and his interactions with the children reveal a highly focussed and driven campaign to undermine that relationship. He continues to hold extremely negative and hostile feelings towards the mother. He is extremely bitter against her. He has deep-seated and entrenched beliefs that she has little of value to offer the children. He has deep-seated and entrenched beliefs that he is by far the better and superior parent; the children should be living with him and his goal is to secure that aim. He does not want the children to enjoy their time with their mother.”

 [30] At §155, the judge set out her conclusions about the section 31 Children Act threshold which she found satisfied. As the father’s appeal grounds included a challenge to her decision about this, I will set it out in full:

“155. These children, T and C, have suffered significant emotional harm as identified by Dr Gough, the local authority and the guardian. At the relevant time of the issue of the proceedings they were continuing to suffer significant emotional harm. They are likely to continue to suffer emotional harm if orders are not made. [The father] has presented a risk, albeit a small risk, of physical harm through his expressed suicidal ideation. That risk is a small risk. There have been no events since the assessment of Dr Gough to substantiate this risk, but this does not mean that that risk, as she explained, is not present. The overwhelming consideration of risk in this case related to the risk of further significant emotional harm. The harm they have suffered and were likely to suffer is attributable to the care given to them by [the parents] as set out above. These children need a sensitive and responsive parent to guide them through their adolescence. They have been significantly emotionally and psychologically harmed by the acrimony, actions and omissions of their mother and father, but more laterally [sic, but probably intended to be “latterly”] over the last two years particularly by the behaviours of their father, although they (the children) do not accept this. Both parents have in the past involved T and C in their conflict. Both have failed to take proper and sufficient steps to protect them, but [the father’s] behaviour since December 2012 has overwhelmingly been the contributing factor and to the harm they have suffered [sic].”

 [31] The judge considered that it was vital for the children and the mother to continue with their therapy; if they did not, she thought it likely that the children would continue to be harmed. She found that the mother was able and willing to comply with this but the father was not and had not truly accepted that the children should have such intervention.

 [32] The judge took into account that the children love their father and want to see him far more than provided in the care plans of LA, at a minimum returning to the arrangement imposed by Deputy District Judge Walker. She found they were very influenced by their father and had blamed their mother for what had happened. However, she also found that their feelings towards their mother and their relationship with her had already seen a significant improvement, albeit that they were still very fragile and vulnerable, T in particular.

 [33] The judge recognised that the level of contact proposed by LA (limited contact once a month for approximately six to nine months whilst the children and the mother continued therapy with Dr Nokes) was low and that she needed to scrutinise this plan very carefully as also the application for a care order itself. Her conclusion was that: “[i]f the children were not subject to care orders, if they moved to live with the father or if contact was unsupervised or at a greater level at this time, the harm they have suffered would continue and be compounded, the progress they have already made undone, the therapeutic process undermined, [the mother’s] parenting capacity adversely and negatively affected and undermined and the children’s relationship with their mother harmed.” (§167)

 [34] Almost the final words in the judge’s judgment were words of encouragement to the father to recognise the harm he has caused and the steps he now needs to take through therapy to enable the necessary changes to be made so that the children can have the full loving relationship with him that they want and need.

 Grounds of appeal: the principal complaint

 [35] One theme dominated the father’s grounds of appeal, namely his complaint about the way in which Dr Gough’s evidence had been approached.

 [36] It was argued that Dr Gough had reached conclusions about the father which were extreme and wholly damning and that the only way in which he could effectively challenge them was by adducing his own psychiatric/psychological evidence. Accordingly, it was said, he should have been permitted to commission a further assessment by a different psychologist and to adduce the existing January psychiatric report.

 [37] In my view, the judge was entitled to refuse the father permission to instruct another expert. His application could only have been granted if the judge considered that it was necessary to assist the court to resolve the proceedings (see Rule 25.1 Family Procedure Rules 2010 which applied because the application preceded the commencement of section 13 Children and Families Act 2014). Although we do not have the judge’s judgment, we can infer that she did not consider it necessary and that is a position that was undoubtedly open to her.

 [38] Dr Gough was instructed by the parties jointly (see the order of 29 August 2013). She was an experienced psychologist. She reviewed a considerable amount of material, as set out by the judge in her judgment. Importantly, she also spent a considerable amount of time with the family. She spent eleven hours with the father on his own but also saw the mother and the children for significant periods of time. In order to put him or herself in a comparable position to Dr Gough, another psychologist would have had to interview the children and the mother as well as the father. That would have meant further intrusion into the children’s lives. Sometimes a further expert does have to be instructed notwithstanding that it will be disruptive for the children, but I do not consider that this was such a case. The judge was entitled to conclude that Dr Gough provided such psychological assistance as was necessary to assist in the determination of the case. The refusal to permit the instruction of another expert did not prevent the father from challenging Dr Gough. Cross-examination provided the opportunity to do that, at length. The process no doubt included putting to her any evidence which the father considered was at odds with her assessment or undermined it and, of course, the court’s attention could also be drawn to such material in submissions.

 [39] A particular concern of the father’s was Dr Gough’s view of his suicidal thoughts and their potential implications for the children. It was argued that his application for leave to instruct a further psychologist was restricted to an assessment of himself. The value to the father (and the court) of any new report on himself alone would inevitably have been limited by the difficulty that the psychologist would have faced in giving a convincing view as to the risks at the time of Dr Gough’s assessment. I suspect that the most that could have been achieved would have been an assessment of the state of affairs at the time of the new psychologist’s examination and it would have been open to the father to have sought a further consultation with Dr Gough in order to obtain just such an updated opinion. But the father’s proposal was not, in fact, confined to an assessment of his own psychological state or the risk he posed. It included a proposal that the psychologist should carry out a review of Dr Gough’s assessment and the conclusions she set out in her report and there was a reference to the expert seeing the mother and children if so directed.

 [40] As it happens, an alternative view of the father’s mental state was in existence in the form of the January psychiatric report. It would have been open to the judge to admit that report formally in evidence but one can well see why she did not do so and I do not accept that this was a wrong course. I would not fault her explanation, at §116 of the judgment, of why she attached no significant weight to the report. She said of the psychiatrist that:

“[he] has not been involved with these proceedings. He has seen none of the documentation. His examination of [the father] was not focussed on the matters subject to these proceedings – he does not know about them. He did not consider his examination in the light of concerns about the children, [the mother] or [the father’s] behaviours.”

 [41] There were other features that supported her decision. The father did not intend to make the psychiatrist available for cross-examination, stating in his application that the doctor was not able to attend court. In addition, the psychiatrist had proceeded upon the basis of what the father told him which included his own account of what he had said to Dr Gough about suicide which differed materially from Dr Gough’s account which the judge preferred.

 [42] As it turned out, the father succeeded in impressing the contents of the January psychiatric report on the judge’s mind anyway. The judge said in §116 that although he had not been permitted to adduce it, the report was before the court and had been referred to by him in some detail. We were told in argument that he had not been allowed to put the report itself to Dr Gough but he did put the contents of it to her, suggesting that the psychiatrist’s view should carry more weight than hers.

 [43] Complaint was made that the without notice hearing on 6 December 2013 and the procedure adopted in its immediate aftermath were not fair to the father. The crux of this complaint is the assertion that the view that Dr Gough expressed then coloured the attitude of the professionals and the judge to the case, distorting the true picture to the father’s grave disadvantage. It was submitted that by the time the order of 6 December 2013 was made, it was already established in the judge’s mind that harm was anticipated and contact needed managing safely. It was also submitted that although the judgment gives the appearance of weighing matters up and reaching a conclusion following the final hearing, in fact the judge’s mind was made up against the father long before the final hearing.

 [44] I am not persuaded by these arguments. The procedure adopted on 6 December 2013 cannot be criticised, in my view. It was an acceptable way in which to proceed in the light of the worry that the children may be at serious risk if Dr Gough’s report were to be disclosed to the father whilst they were staying with him. Had notice of the hearing been given to the father, it might have defeated the whole object of it. His position was recognised and protected in a number of ways: the without notice order was made for a very limited period, he was provided with transcripts of what occurred, and the report was disclosed the following week at a hearing attended by all parties which provided the opportunity to revisit the orders made on 6 December.

 [45] When it came to the final hearing, the father was able to challenge all of what Dr Gough had said, including what she had said as to whether he posed any physical risk to the children. Indeed, he was given considerable latitude with regard to the cross-examination of Dr Gough. Her evidence was given over the course of three days in total. The judge recounted how she was cross-examined at length by the father’s counsel and then, when the father withdrew his instructions from his lawyers, she was recalled because the father wanted to put further questions to her and he cross-examined her for most of another day.

 [46] The judge made clear in her judgment (see for example §38 and §137 et seq) that she gave very serious consideration to the questions that the father had raised about Dr Gough, including his challenges to her professionalism, integrity and independence, before concluding that she had the right expertise and her assessments were reliable. She devoted 34 paragraphs of her judgment to a comprehensive review of Dr Gough’s evidence and she considered it further at intervals throughout the judgment. She included in her consideration a review of the position in relation to potential physical harm, including making the finding (§139) that the father himself had said that he had thought about suicide. I do not accept that all of this was window dressing by the judge or rationalisation of her long held view of the case. Nor do I accept that Dr Gough’s assessment was inappropriately influenced by her reaction to the father’s behaviour at the meeting where he spoke of suicide. The judge did not conclude that this was so and I can find no reason to question her assessment of the position.

 [47] It is material to note in this respect that Dr Gough’s view (and the judge’s own conclusions) were consistent with and supported by other features. Deputy District Judge Walker had concluded that the father was undermining the children’s relationship with the mother and that that was against their interests, and he too had worries, as did the guardian, about how the father would react to his judgment. There was material generated by the father himself in the form of emails/letters, texts, transcripts of telephone conversations and his closing submissions which lent support to Dr Gough’s assessment of him. And the views of the social worker and the guardian coincided with those of Dr Gough.

 [48] Mrs McConnell, the social worker who assessed the family, observed, for example, that the father had “not been able to put safe emotional or psychological boundaries in place for the children” and commented on the many examples in the texts and emails of his inappropriate comments to the children and his lack of restraint. It was LA’s view that the children had been put under emotional pressure by the father and that harm had been caused to them by the length of time this had lasted and the accumulation of the pressure. Mrs McConnell considered that the father continued to be a risk. There is nothing to support the argument that her assessment was moulded by Dr Gough’s views. She took them into account but carried out her own assessment, including having discussions with the father and the children and observing contact.

 [49] The guardian is said to have had limited involvement with the parents and the children although it can be seen from her reports that she interviewed both parents, had regular telephone conversations with them, and that she met the children regularly and attended meetings about them. The judge did not consider her assessment to be invalidated by such limits as there were on her involvement.

 [50] The judge produced a most thorough judgment, drawing together all the strands of the evidence. It included not only the matters which told against the father but also those which counted in his favour, including the very important fact that the children wished to see their father far more frequently and extensively than the care plans provided and missed him. From it, it is quite clear that the judge’s decision was not based upon an unquestioning acceptance of Dr Gough’s evidence, whether as to physical risk or as to emotional considerations. The question of physical risk played a part in the judge’s conclusions but only a small part and it has not been established to my satisfaction that she was wrong to take the view that she did about it. In any event, the evidence available to her went much wider than that and she drew upon all of it, and upon her own experience of the father as he participated in the proceedings which was consistent with what others described, to reach her conclusions. I would not interfere with them. Other grounds of appeal concerning the judge’s substantive order

 [51] In explaining why I would not interfere with the judge’s conclusions, I have concentrated on the father’s main argument. There were a number of subsidiary grounds of appeal and I will deal the more important issues raised briefly here.

 [52] It was argued that the judge was wrong to determine that the threshold was established because, it was said, the evidence, in particular that of LA and about the children’s functioning at school, did not support the finding that the children had been harmed to the extent necessary for this purpose. Miss Brannigan QC for the father did not contest that the children had suffered some emotional harm; the argument was that at the relevant time for threshold purposes, the harm could not be said to be significant.

 [53] Once again, Dr Gough came into this argument, it being submitted that it was her assessment that led to the view that the children were suffering significant harm at the material time and that this was not a sufficient foundation because Dr Gough’s assessment was wrong. It was pointed out that LA themselves did not ask for an order although they had been involved with the family before the interim care order was made. Reliance was placed on LA’s assessment in the spring of 2013 which did not find adverse behaviour at school or conclude that there was yet emotional harm, although the social worker did warn of the risk of it.

 [54] I am not persuaded that the judge’s determination that the threshold was crossed can be said to have been wrong. She explained clearly in §155 of the judgment (which I have set out in full above) why it was that she took this view. Dr Gough’s evidence was an important part of the material on which she based herself. I have already rejected the argument that Dr Gough’s assessment was unduly influenced by her reaction to the final interview with the father when he spoke of suicide so there is no reason why the judge should not have relied upon her opinion. It can be seen that she also relied on the view taken by the guardian and LA by the time of the hearing. Furthermore, there was a considerable amount of material available to her from which she had a clear picture of how the parents had been behaving. The observations of social workers and others at around the time when the first interim care order was made are of course material to a judge’s determination of whether the threshold was crossed but ruling upon such an issue is inevitably a retrospective process and, by the time of the hearing, in a case like this the judge (and any professional witnesses) are likely to have the advantage of more information and greater perspective than was available contemporaneously. The hearing also provides an opportunity to look at the whole picture in a way that is not possible as events unfold. It can be seen from the judge’s reasoned conclusion on the subject that she subjected the evidence to critical analysis herself. She identified features of the parents’ behaviour which would be expected to be damaging to their children and she was undoubtedly entitled to conclude that they had been in this case.

 [55] The judge’s findings of fact about the father were also challenged. She was said to have been wrong to conclude that he set out to destroy the children’s relationship with their mother and it was said that she had not explained her reasons for such a robust finding. The skeleton argument provided on behalf of the father complained that there had been no detailed analysis by the judge of the texts and emails which she considered provided clear evidence of the father’s insidious and subtle comments and also complained of a lack of balance because, it was said, the communications also revealed evidence of the mother putting emotional pressure on the children and undermining the father’s role in their lives. However, we were not provided with copies of the material in question and the point was not pursued actively in oral submissions. In the circumstances, it is difficult to make anything of it. In any event, it seemed to me doomed to fail as one can see from the material quoted in judgment, perhaps particularly the letter written for the children, that the judge’s conclusion was well founded. Similarly, I am not persuaded that the judge was too robust in her finding that the father had been intent on harming the children’s relationship with the mother. Her conclusion was stronger than that of Deputy District Judge Walker but it was along the same lines and she had plenty of material on which to base it, no doubt not least her observations of the father during the hearing.

 [56] Complaint was made about what were said to be procedural failures in the hearing process. One such was that the judge had found as a fact and recorded on the face of the order resulting from the hearing of 13 May 2013 that the father had given untruthful evidence about the whereabouts of the passports and this had not been rectified in any subsequent order once it was realised that this was not so. To that, I would say that the error was, however, recognised, acknowledged and addressed (see §19 and §47 of the judgment in particular). There is no evidence that it significantly undermined Dr Gough’s views or the judge’s overall conclusions. Another aspect criticised was the failure to produce evidence at the final hearing from an earlier social worker who was perceived to be more favourable to the father. This social worker was, however, a duty social worker involved for a limited purpose and who could only have had a superficial understanding of the issues in the case. Had the father wished to do so, he could have sought to call her or to have her called but I do not think such attempts were made. I cannot see that it would have made any difference to the outcome in any event as LA had had an opportunity to consider the matter much more fully after the involvement of that social worker ceased and the father did have the opportunity to question the LA witness who spoke to their resulting assessment.

 [57] The judge was also criticised for allowing the opinion of Dr Nokes (who was assisting the children and the mother with therapy and whom the father argues was influenced by Dr Gough’s views) to be adduced in the proceedings. There are two documents from Dr Nokes in the bundle. One is a letter dated 24 February 2014 and the other a note of a conversation between the guardian and Dr Nokes in April 2014 when the judge asked for information as to the right way to proceed from a therapeutic point of view after the father had indicated he was prepared to participate in therapy. Apparently the father made no objection to the introduction of either of these documents at the time. There was nothing inappropriate about them and it was important for the judge to have guidance about the therapy because it was relevant to her determination of what order was in the children’s best interests.

 [58] Finally, the judge was said to be wrong to endorse a care plan which did not meet the needs of the children because it was wholly disproportionate to quarantine the father from the children. Reliance was placed on the absence of physical or sexual abuse and it was argued that the children have been upset by the reduction in contact and their emotional turmoil has been increased by the denial of the relationship with their father which they want.

 [59] This ground of appeal cannot succeed in my view. The judge carefully balanced the various factors that emerged from the evidence before her, including the wishes of the children, and took account of the professional advice offered to her. She arrived at a decision which was justified in the circumstances of the particular case for valid reasons which she explained.

 Separate representation for the children

 [60] A rather different ground of appeal was that the children should have been separately represented from the guardian. This was not a promising ground as the question of separate representation was not raised by anyone with the judge during the hearing. It was argued, however, that the judge should have ordered it of her own motion.

 [61] Reliance was placed upon the letter that T wrote to the court dated 19 Dec 2013 in which she said that she was really disappointed in the guardian and her solicitor as they seemed to “represent mum” and had not presented anything that she and C wanted to the court. That letter was hand delivered to the court during the short adjournment on 20 December 2013.

 [62] The argument also drew upon examples of the children having expressed in strong terms that they wanted to see their father, see for example the social worker’s report at B108. Attention was also invited to the fact that T said to the judge in February 2014 that it was not their life any more and they were just puppets.

 [63] The children’s wishes were very plainly communicated to the court by a number of routes. These included, but were not limited to, their views being faithfully relayed to the court by the guardian, even though she did not agree that they should be determinative of the case and advised accordingly. The children also had the opportunity to meet the judge, although this was not for the purposes of gathering evidence. The judgment shows that the judge fully appreciated that they wanted to see a great deal more of their father and could not understand why he was viewed adversely. The question of whether the children should have been separately represented was, however, a rather different one, governed by Rule 16.29 Family Procedure Rules 2010 which provides:

(1) Subject to paragraphs (2) and (4), a solicitor appointed –

(a) under section 41(3) of the 1989 Act; or

 (b) by the children’s guardian in accordance with the Practice Direction 16A, must represent the child in accordance with instructions received from the children’s guardian.

(2) If a solicitor appointed as mentioned in paragraph (1) considers, having taken into account the matters referred to in paragraph (3), that the child –

(a) wishes to give instructions which conflict with those of the children’s guardian; and

 (b) is able, having regard to the child’s understanding, to give such instructions on the child’s own behalf, the solicitor must conduct the proceedings in accordance with the instructions received from the child.

(3) The matters the solicitor must take into account for the purposes of paragraph (2) are –

(a) the views of the children’s guardian; and

 (b) any direction given by the court to the children’s guardian concerning the part to be taken by the children’s guardian in the proceedings.

(4) [deals with the position where no children’s guardian has been appointed]

 [64] Our attention was invited to the decision of this court in Mabon v Mabon [2005] EWCA Civ 634 in which, dealing with the question of separate representation, Thorpe LJ said:

“If direct participation would pose an obvious risk of harm to the child, arising out of the nature of the continuing proceedings, and if the child is incapable of comprehending that risk, then the judge was entitled to find that sufficient understanding had not been demonstrated. But judges have to be equally alive to the risk of emotional harm that might arise from denying the child knowledge of and participation in the continuing proceedings.”

 [65] This was the legal background, therefore, to this ground of appeal.

 [66] Responding to it, the guardian explained that she and the children’s solicitor had kept the issue of separate representation under review throughout the proceedings, approaching the matter in accordance with relevant rule. At no stage other than in T’s December letter to the court was there an indication that the children wished to instruct a solicitor independently.

 [67] As I see it, there is no doubt that T and C did not want the outcome that the guardian recommended to the judge and to this extent, their instructions to the solicitor would have conflicted with those of the guardian. However, the solicitor also had to consider whether they were able, having regard to their understanding, to give such instructions on their own behalf. Relevant matters for the solicitor to take into account in this regard included the views of the guardian. The solicitor and the guardian considered that the children did not have capacity to give instructions. This was a judgment they had to make based on all the circumstances of this particular case and bearing in mind the emotional harm that the children had suffered and the high level of parental conflict in the case. It was also material that the children’s views changed at times during the proceedings as the judge said in §119.

 [68] Miss Jacklin QC for LA took us to some evidence which is particularly relevant to the question of separate representation.

 [69] First, she drew attention to the guardian’s observation in her final report that since contact with the father had reduced, there had been a noticeable change in how T responded to her. She was said to be much friendlier, had asked if the guardian could visit her at school, and had apologised for writing the December letter to the judge. I accept Miss Jacklin’s submission that this showed that the relationship between T and the guardian was one of confidence and trust by that time. To my mind, it shows that it was far from clear that the children would have wanted to instruct their own solicitor.

 [70] Secondly, she took us to Mrs McConnell’s statement filed in March 2014 in which she said:

“T and C are young; they will not appreciate all the consequences of their wishes and feelings. They would like things to be fair, they are viewing the plan as a simple division sum; there are two parents so that’s 50:50. They are not able to appreciate the significance or importance of their own needs or to weigh and balance conflicting adult’s wishes, feelings and beliefs. They have not been able to consider their wishes and feelings in the context of their parents’ inability to share care or co parent, because it is beyond their age and experience.”

 [71] This latter piece of evidence shows, in my view, that the solicitor instructed by the guardian was entitled to consider that the children did not have sufficient understanding to instruct her independently, even if they sought to do so. Participating directly in these particular proceedings, given the nature of the evidence and the issues and the characteristics of the parents, would undoubtedly have been potentially harmful to them and they would not have understood the risks. Accordingly, I do not think that the judge erred in any way in failing to raise the question of separate representation or to make such orders as were open to her so as to compel it, nor do I think that any error on the part of the solicitor or guardian has been demonstrated.


 [72] For all the reasons I have given, I would therefore dismiss the appeal.

 King LJ:

 [73] I agree

 Sir David Keene:

 [74] I also agree.