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Family Law

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13 NOV 2014

Re W (Care Order: Judge's Failure to Engage with Evidence) [2014] EWCA Civ 1361

Re W (Care Order: Judge's Failure to Engage with Evidence) [2014] EWCA Civ 1361
(Court of Appeal, Jackson, McFarlane, Kitchin LJJ, 19 August 2014)

Care proceedings – Appeal – Evidence – Reliance on short answers provided by professionals at oral hearing – Whether the judgment dealt with the wealth of detailed evidence provided by professionals

The full judgment is available below.


The appeal from a supervision order in respect of three children was allowed and the case was remitted for rehearing before a different judge.

Care proceedings were ongoing in relation to the three children who all had particular needs including behavioural and developmental difficulties. The mother suffered from mental ill-health and the father had previously had a problem with alcohol abuse. The parents had a volatile relationship and the level of conflict increased when the mother commenced a new relationship. She left the home and sometimes returned.

Under a child protection plan the mother agreed to leave the property but during the proceedings she returned to the family home stating that she was homeless. The father took her in for a short period although he later realised that that had been a profound mistake. The threshold criteria were agreed by the parents on the basis of the significant emotional harm suffered by the children and the likely further significant emotional harm at the date of intervention.

At the hearing the social work evidence demonstrated that the father had been coping to the extent of providing for the children’s physical needs but all of the professionals involved were of the view that he could not meet their emotional needs and that all three children required placement in permanent long-term care.

The judge determined that there was no real prospect of the mother being brought back into the family home and that, therefore, the children should remain living with the father. He found it was in their best interests to do so rather than be separated and move to alternative long-term care. The application for care orders was dismissed. A one-year supervision order was granted. The local authority, supported by the children’s guardian appealed.

The appeal was allowed. The judgment had failed to reflect the detail of social work and other professional evidence presented to the hearing. The result of the process had been wholly unsatisfactory and led the judge to conclude that the instance of the father permitting the mother back into the home was the only point they relied upon. In order to make a decision in the best interests of the children the judge needed to be fully engaged in the detail the professional witnesses had relied upon and that had not happened in this instance. The decision was set aside and the matter was remitted for rehearing before a different judge. An interim supervision order was substituted.



Neutral Citation Number: [2014] EWCA Civ 1361
B4/2014/1518

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WATFORD DISTRICT REGISTRY
(HIS HONOUR JUDGE SEROTA QC)

Royal Courts of Justice
Strand
London
WC2A 2LL

Tuesday, 19 August 2014

B E F O R E:

LORD JUSTICE JACKSON
LORD JUSTICE McFARLANE
and
LORD JUSTICE KITCHIN

IN THE MATTER OF: W (CHILDREN)

(Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 Official Shorthand Writers to the Court)

Ms Gillian Temple Bone (instructed by the Local Authority) appeared on behalf of the Applicant
Ms Eilidh Gardner (instructed by Burgess & Co Solicitors) appeared on behalf of the Respondent Father
Ms Maggie Jones (instructed by Bramwell Browne Singer Solicitors) appeared on behalf of the Children's Guardian


J U D G M E N T

LORD JUSTICE McFARLANE
:

[1] This appeal, which is brought by a local authority and comes before this court following grant of permission by me at an earlier date, relates to the determination made by His Honour Judge Serota QC at the conclusion of care proceedings relating to three young children. The children are a boy, H, born on 27 July 2002 and therefore now just over the age of 12 years; a girl, L, born on 4 July 2006 and so just over eight years; and a third child, another boy, L, born on 14 October 2009 and so some four years and three quarters.

[2] The three children lived together with their two parents until that arrangement changed in April 2013. Each of the children has fairly significant difficulties which render the chance of caring for them even more challenging than would ordinarily be the case. The eldest child, H, is described as being a highly vulnerable child who has behavioural difficulties and presents as being emotionally disturbed at times, but he copes with mainstream schooling, albeit with an extensive support package in place. There are concerns about his relationship with his two younger siblings at home and how he perceives relationships in the household generally, particularly with respect to his two parents.

[3] The middle child, L, has been diagnosed with poor growth and developmental delay and she has a statement of educational needs. She functions at a level significantly lower than her chronological age, and, despite the fact that she is now eight, she still needs to wear nappies from time to time. The youngest child, L, also suffers from global developmental delay. He is short in stature and there are some concerns about his ability to mix socially with other children.

[4] The parents also, sadly, have not been without their own difficulties. The mother has for a significant time suffered from some mental ill health, and in particular she has a significant eating disorder. The father, until 18 months to two years ago, had a serious problem of alcohol abuse. The relationship between the two parents was at times volatile and the children were exposed to that volatility in terms of arguments between the parents.

[5] Matters came to a head in the early part of 2013 because the mother commenced a relationship with another gentleman. That increased the level of conflict and raised substantial uncertainty about the future of the parents' relationship, with the mother leaving the home and at times coming back. Thus it was that, by agreement, following the drawing up of a child protection plan in April 2013 the mother agreed to leave the property.

[6] These care proceedings were instituted some time after that, but the threshold criteria, which were not controversial within the proceedings and were agreed by the parents and are set out at page A19 of the court bundle, rely upon the establishment of the fact that the children were suffering significant emotional harm and were likely to suffer significant emotional harm as at the date of intervention, which was 26 April 2013. No less than eight elements are cited of the type of experience the children have had as a result of the mother's mental ill health, conflict in the family, the uncertainty as to the stability of the parents' relationship and, at an earlier time, the father's misuse of alcohol. In addition, at times it is said that the physical conditions within the home were poor.

[7] Matters moved on and the evidence before the judge who came to determine the case following an oral hearing in mid January, and then a final day's hearing in early February, was to the effect that the father, who now was acting as a sole parent for his children, was coping, at least to the extent (and this is a significant achievement) of providing for the children's physical needs and making sure that they attended school regularly, which they did, and engaged with all of the other requirements on his time and their time that arise from having children with these particular needs and being under the spotlight of the social services. For their part, the social services and the education services put in a substantial element of monitoring and support designed to assist the father in this task.

[8] Thus it was that at the hearing before the judge, in terms of father's physical care of the children, there was an acceptance that he was certainly providing "good enough" care for them, to use the phrase that often appears in social work reports. The concern, however, remained the emotional well being of the children and whether he could meet the needs of the children collectively as a trio, or individually, given their own individual circumstances.

[9] The judge had before him an assessment carried out by a local authority family assessment team ("FAST"); he had evidence from an independent social worker who had been commissioned to undertake a detailed evaluation of the father's ability to care for the children; he had detailed evidence from the social worker who had been the social worker throughout the length of the case; and he had input and analysis from the children's guardian. All four of those professional agencies and individuals, at the conclusion of their assessments, were of the view that the father could not meet the children's emotional needs and that all three children now required to be placed in permanent long term alternative care arrangements. Initially, the local authority application was for the younger two children to be the subject of a placement for adoption order, but that was not an order made by the judge at the conclusion of the process and no appeal is now brought in relation to his dismissal of the placement for adoption applications.

[10] Despite the high level of professional concern that I have described, the judge nevertheless backed the father. He heard the father give evidence, and indeed heard the mother give evidence. He heard that in December 2013, in the lead up to the hearing, the mother had arrived one evening at the father's door and had asked to stay as she had fallen out with her new partner. The father took her in for a period and there was a further return to the home a day or two after that. That was contrary to the agreement the father had made with the social services, and in retrospect he accepted it was a profound mistake to bring the mother back into the family home.

[11] The judge heard evidence. He was concerned that this turn of events had happened, but he accepted that the father was genuine in his regret that it had happened and, more significantly, the judge concluded that looking to the future the relationship between the mother and the father was now such that there was no real prospect of the mother being brought back into any close relationship with the father, and because of the experience of the consequences of her coming to visit him in December, the judge was confident that the father would not have her back in the house.

[12] So on that basis, the judge concluded that all three children should remain living with their father, that it was in their best interests to do so rather than to be separated and moved to strangers in long term care, and the judge therefore dismissed the application for care orders and imposed instead a supervision order on each of the three children for a period of a year. It is against that outcome that the local authority now seek to appeal. They are supported in that appeal by the children's guardian.

[12] The case is odd because, as I have described, the four elements of the professional evidence before the judge were clear that the father could not meet the children's emotional needs, and yet the judge came to a contrary conclusion. In order to try and understand how that turn of events occurred, it is necessary to look shortly at the judgment. There are two judgments. The first was given in the dying half hour or so at the conclusion of the last day of the hearing on 17 February, and the judge, really in no more than headline terms, summarised his conclusion. He gave his detailed judgment, which is a much more substantial document, on 23 April.

[14] I will return to the short February judgment in a moment, but in order to summarise the case as it was before the judge I turn to the main judgment. He notes in the course of his summary that the threshold criteria were satisfied and then he goes on in some detail to describe the evidence that he heard from the professionals and from the mother and the father. I am certainly not going to read all of that detail into this judgment the judge deals with it over the course of 24 closely typed pages but it is of note that first of all in his summary of the FAST assessment, he records the conclusion that all three children had "complex needs which required parenting that met all their needs and provided them with a positive experience in all areas of their development".

[15] The judge goes on to record that the assessor concluded that the father could not meet the children's emotional needs. In particular, he quotes from paragraph 3.32 of the report at paragraph 37 of his judgment. Again, I am not going to read the details here, but the judge expressly notes in that quotation that the father provides "inconsistent boundaries" for the children; that "unwanted and unkind behaviour between the siblings has gone unchallenged"; that the younger two are treated as much younger than their age, and actions such as the continued use of nappies and baby bottles are a feature; and that, conversely, the eldest boy, H, is treated as much older than his years, is allowed to do much as he pleases and is drawn into adult conversations with the father. The paragraph concludes: "The lack of emotional warmth, interactional play and stimulation and praise and encouragement adds further concern to the Father's parenting ability."

[16] In his judgment, the judge having referred to that report, states: "There were many areas of his parenting that did not provide the children with support, warmth, encouragement and boundaries that they needed to enable them to develop and grow. He had not shown any understanding of their developmental needs in respect of feeding, inappropriate sleeping arrangements, toilet training, lack of stimulation, interaction and play."

[17] That is the judge's summary of that evidence. So far as the independent social worker is concerned, he starts with the observation made by that professional, which must surely be correct, which is to the effect that the professionals themselves are struggling to understand the individual presentations of these three children and to understand how they can best be supported. It follows that the ability of the father to do this is similarly challenged by the very scale of the task.

[18] At paragraph 45, the judge records the independent social worker as expressing "the very strong view" that the father would not be able to meet the children's needs without a high level of ongoing support likely to be necessary throughout their childhoods. That is a reference to emotional support as much as any other support. The judge quotes in detail the conclusion at paragraph 49 of his judgment, which again is in plain terms, that the father is currently struggling to meet the children's needs and is feeling overwhelmed.

[19] So far as the social worker is concerned, the judge does not deal in detail with her professional recommendations, but notes in two separate parts of the judgment that she agrees with the assessment of the FAST team and the independent social worker.  

[20] Finally, in terms of the guardian's input, the judge from paragraph 73, onwards summarises her evidence and indicates that she too relies on the FAST report and has the concern that the children have suffered neglectful parenting in the past and now need better than good enough parenting. He records the guardian's view, which is that the father lacks insight into what is needed to be put into practice in terms of the deficit in his care. Then at paragraph 78 the judge says this:

"78. ... The children have suffered loss as a result of effectively losing their mother but are not supported by the Father to deal with that loss because of his own vulnerabilities; they then find themselves burdened with the Father's emotional vulnerabilities. Until the Father is able to address his own emotional needs, he will not be able to address those of the children.

79. I interpolate here that I have found this difficult to follow, and it has not really been explained to me what this meant. An example was given to me about being able to meaningfully engage with Relate about the risk of emotional abuse were the Mother to return home and then leaving again; this was emotionally abusive."

[21] The judge then goes on to deal with submissions, and I propose to quote two passages from his summary of that part of the case:

"85. Pausing there for one moment, I have been unable to understand in concrete terms what is meant by the additional parenting the children require and how this parenting is to be delivered. Miss Temple Bone criticised the Father as being someone who did not accept he needed further support. Again, I interpolate here that is not how the Father came across to me when giving his evidence. The Father was, Miss Temple Bone submitted, overwhelmed with caring for three such challenging children. I again interpolate at this point in time that it is accepted by everybody that these three children have complex problems. They are needy children. That is why whoever cares for them needs and is entitled to support.

86. Miss Temple Bone was able to enlist the support of the evidence of Miss Mascarenhas, of Miss Vanderpant and Miss Hampton in relation to the Family Assessment Team assessment, to Nicki Vella and the Guardian. I again interpolate here, it is not at all clear to me what the Local Authority says the Father has done wrong or not done and why this is likely, even with support, to give cause to further harm to the children."

[22] Those paragraphs show the judge in express terms saying that he was unable to understand what it was that the father lacked in terms of an ability to meet the children's emotional needs. Again, in the context of submissions on behalf of the guardian at paragraph 92 the judge said this:

"I pressed the Guardian's solicitor, Mr Browne, and more so the Local Authority, to give concrete examples of how the Father's lack of emotional attunement manifested itself in his care of the children and how this was likely to cause further significant harm. However much I pressed, it simply came back to this: the Father had failed to recognise the emotional harm caused by allowing the Mother back into the house and then leaving again; he had not separated from the Mother, and even if they were currently separated they were likely to get back together. As I will make clear shortly, this is contrary to the findings that I will make."

[23] The judge goes on to make the finding that I have already described about the lack of a prospect of the mother returning to the family home once more in the future. In so far as the key topic of emotional harm is concerned, the judge concluded as follows at paragraph 98 and 99:

"98. It is said that the Father is unable to offer adequate emotional care to the children who, as a result of past substandard care, need enhanced care good enough care will no longer do, how the case is put. Emotional care is a concept much harder to grasp than physical care and I have found it elusive. If the Father can provide good enough physical and emotional care to the children's needs by ordinary standards, as Miss Mascarenhas said, what are the special needs of these children over and above the normal or usual needs, and in what respects does the Father not provide these? I attempted to get some concrete examples, but we kept coming back to the Father's irresponsible action, despite advice to the contrary, in allowing the Mother back into the house when she presented herself as homeless. I have explained the circumstances in which it happened; I accept the Father's evidence in that regard, and I do not regard it as likely, again as I have already said, that the relationship with the Mother will be resumed.

99. It is particularly difficult for any carer who has to care for these three children as Miss Vella has said that the children have such complex needs that the professionals involved struggle to completely understand the children's presentation. Bearing in mind the tremendous advantages that children have by being brought up in the birth family, and on the evidence that with proper support under a supervision order the Father can provide safe care, in my opinion there is no justification for placing these three children in foster care. I made that clear on the last occasion."

So, on that basis, the judge made the orders that I have described, leaving the children at home with the father.

[24] The case mounted on appeal by Ms Gillian Temple Bone, who appeared for the local authority before the judge, is on the basis that there was a wealth of detailed evidence about the children's emotional needs, and the father's inability to provide for them, in the material before the court. For the purposes of her skeleton argument for this case, Ms Temple Bone has been able to give detail drawn from the witness statements, drawn from the assessment reports, drawn at times from minutes of core group meetings, from notes or reports put in from the school and drawn from the oral evidence which we have now had transcribed, which shows that a full account of the range of concerns about the children's emotional upbringing was indeed before the court and ranged far more widely than simply the focus that the judge appears to have had, which was that it all boiled down to the risk of harm arising from the potential for the mother to return to the family home once more and repeat the unsettling arrival and departure that took place in December.

[25] I am not going to, in the course of this judgment, give a list of the examples that Ms Temple Bone has been able to give to this court. They are nevertheless striking in their detail, and one asks rhetorically how is it that the judge failed to be engaged in that detail so that it is replicated in his judgment? Of course, any judge is entitled to come to a conclusion which differs even from the unanimous professional view of the witnesses in the case, but if he is going to do so he needs to grapple with the detail upon which the professionals rely and then explain in detail why he comes to a different view. That simply did not happen here. It certainly seems to me in reading the references that we have now had placed before us and reading the judgment, that in some manner there was simply a failure to transmit the detail to the judge, to communicate it effectively. That, of course, involves two sides, both the transmitter and the receiver: counsel, the professional witnesses and the parents on one side and the judge as the consumer of all the material on the other. It is, however, plain there is a mismatch, a disconnect, between the case that the professionals were seeking to place before the court and the appreciation of the case that the judge was able to achieve.

[26] In the course of her submissions to the court today, Ms Temple Bone has in particular taken us to a number of extracts in the transcript, and those are telling because, over and above the written word the judge would have had in the bundles, the professionals were speaking to the judge from the witness box about these various points. Early on in the evidence of the independent social worker at page C11, the worker is quoted as saying: "My view is that [H] does not have a good enough, a strong enough emotional relationship with his father to be able ... to address that need, and unless that need is addressed he will not be able in, my view, to fulfil his potential." So, pausing there, a much bigger point than simply the mother coming back to the house or not. Then at page 23, again in the evidence of the independent social worker, the transcript reads as follows:

"MS TEMPLE BONE: Where it concerns their emotional needs, consistency of parenting, boundary setting, he does not meet their needs?

JUDGE SEROTA: I am sorry, the emotional needs you say are what, boundaries? A: I am including in emotional needs boundary setting, consistency of parenting, stimulation, responding to their emotional needs. There is a step before that which is recognising the children's emotional needs and ... it is my assessment that [the father] struggles to recognise the children's emotional needs, and when these are discussed with him he is then unable to respond and meet those emotional needs."

That is a wide ranging answer which draws together in headline terms some of the big points that the witness was relying upon.

[27] Doing the best I can to understand how the judge fails then to replicate that detail in his judgment, I wonder whether these points stand out in the transcript when we are taken to a particular passage on a particular page, and where the transcript runs to 200 or more pages, whereas in the courtroom they are words that are quite swiftly spoken and then gone. In social work terms they will be very important, they are labels for very big subjects, but I wonder whether it was sufficiently laid out in detail for the judge to understand just what it was that was being described.

[28] Again, around that area of the evidence, the independent social worker described an occasion (recorded in more detail in her report at page E21) where H was being highly critical of his younger sister in her eating and was talking in a harsh way, comparing her eating to that of pigs and other animals. It was that sort of example that led the independent social worker to say to the judge that she regarded the living environment for these children as being "unhealthy". On asking Ms Temple Bone, we were told that that was "unhealthy" in an emotional context. Again, I wonder how clearly that was transmitted to the judge at the hearing.

[29] In another way, the judge had, and we have at page A6 of our bundle, an important page in the middle of the social worker's case analysis, drawn up in October 2013. There on that page, under 11 subparagraphs, the social worker lists the negative aspects of the father's care. They are again big topics and they all deal with emotional well being: failure to provide emotional warmth, failure to provide praise or encouragement for the children, lack of stimulation, H spending long periods of time in his room, the younger two being treated as too young and the older boy being treated as too old, and then the father being inconsistent in managing unwanted behaviour and setting boundaries. At paragraph 8 the social worker says this:

"The lack of emotional warmth, interaction, play, stimulation, praise and encouragement adds further concern to [father's] parenting ability and motivation to meet the needs of his children."

Now, that is very clear, but equally it does not seem that that was given any prominence by the social worker in her oral evidence or in the questions that she was asked in the course of her oral evidence.

[30] We then come finally in terms of the transcript to the occasions when the judge did, as he says in his judgment he did, call upon the witnesses first of all and then the advocates to help him with the difficulty he had in understanding what was being meant by "emotional issues". At page 159, which is part of the guardian's evidence, where the emotional issues are mentioned, the judge says this:

"JUDGE SEROTA: Sorry, what emotional issues? Can you please spell those out?

A: The impact of them experiencing numerous losses with their mother returning to the home and leaving and returning again.

JUDGE SEROTA: Last time it was Christmas, was it not?

A: Yes, to my knowledge.

JUDGE SEROTA: Yes.

A: Also the impact of witnessing domestic violence, father's alcohol issues, and mother's mental health and eating disorders."

[31] Shortly before that, the judge had recalled the social worker to the witness box. That is at page C150 of the transcript. Here the process does not seem to have been totally satisfactory. The judge says he wants to ask her simply one question. It is a question which asks the social worker to assume that all of the level of support goes in and assume that the relationship with the mother will not resume, and the question is:

"JUDGE SEROTA: Assuming those, in your opinion would he be able to offer safe care for these three children or any of them?

A: Sadly not.

JUDGE SEROTA: Right. Thank you very much. Does anyone want to ask any questions arising out of that?"

That is followed by a very short further question and answer.

[32] So there, if the judge was having difficulty in understanding why the social worker, sadly, was of the view that the father could not provide a safe home for the children, that was the moment when he might have asked the "why" question. If he had, she might have been able to take him to her case analysis at page A6, but that moment came and went and was dealt with in that way.

[33] In the same manner at page C177, the guardian was recalled. The judge asked her more questions and some detail was given as to, for example, H being used inappropriately by the father as a "sounding board", and, so far as the two younger children are concerned, the guardian advised that the father is "not able to recognise their emotional distress" and that he is "not able to be there for them emotionally". The judge shares his difficulty in relation to this topic by saying: "It all seems to me, if I may say so, very airy fairy." The guardian sympathises, and says that these matters are less tangible than meeting other needs. But then the question and answer moves on, and the judge says this:

"JUDGE SEROTA: I understand that. But what does that mean in practical terms? If you were going to be doing some work with [father], what would you be saying to [father] that he should do?

A: It would be about explaining that mummy has left but that he is still there and he will take care.

JUDGE SEROTA: Well he has done that, has he not?

A: But then he allows mother to return to the home.

JUDGE SEROTA: So it all comes back to allowing the mother to return to the home?

A: I think that is a very significant factor, yes."

[34] So having been exposed to the material in that way, indeed I think on that very day, the judge came to deliver his short judgment on 17 February. At paragraph 16 he says as follows:

"16. Emotional care, which it is said the father cannot adequately provide, is a concept harder to grasp than adequate physical care. I tried to obtain concrete examples by both asking the guardian and probing Miss Temple Bone, who appeared on behalf of the local authority. All that I was offered as to the father's lack of emotional care was his failure to appreciate, despite advice, that he should not have permitted the mother to enter the house in December. I have already mentioned the circumstances of that. I have not been given any other concrete examples of the father's lack of emotional care. For example, it is said: 'The children have suffered loss as a result of being separated from the mother, but they are not supported by the father to deal with that loss. Because of his own vulnerabilities, they are burdened with his vulnerabilities. Until the father is able to address his own emotional needs, he will not be able to address those of the children.' I sought an explanation of this and concrete examples. It came back to the fact that on one occasion the father had allowed the mother back into the house. The mother has said, in fact, that she entered the house again at Christmas. The father denies this and said that the mother saw the children in the park. I am not minded to accept the mother's evidence that she was permitted into the house on that occasion."

[35] Paragraph 16 of that short judgment is striking. It shows acutely the difficulty that the judge perceived in identifying the deficit in the father's ability to care for the children and it identifies that in his view the only assistance that he gained on this topic was that each time it came back to the fact that the father should not have permitted the mother to enter the house in December. If that was the judge's perspective, then it is comparatively easy to understand, following his conclusion that the prospects of such an occurrence occurring again were remote, that the problem could be neutralised, or at least did not justify on its own removing the children from the father's care.

[36] Having gone through the matter in the way that I have, and assisted as I have been both by counsel for the local authority and the guardian, but also by Ms Gardner who also appeared for the father below as she does now, it is apparent that the judgment does not reflect the detail of the social work case and the professional evidence spread across the four sources from which it came. Ms Gardner candidly says that she is unable to take me to details in the judgment over and above the short references that I have made that show that the judge did engage with the topic of emotional harm in the way that the social workers sought for the court to do.

[37] It is not for me to even approach any apportionment of blame here. I do have substantial sympathy for the judge because it is clear that from time to time, and increasingly as the hearing went on, he metaphorically put his hand up and said "I want help with this topic". We have now had that help in the form of the detailed skeleton argument that Ms Temple Bone has provided to the court, but I do not see that the judge had matters spelled out for him in that detail. The matter became further confused because, when asked short questions on the point, the social worker, the guardian and then, in submissions, the advocates referred to the most recent example of a failure to have insight into the effect on the children's emotions of his actions being the mother's return to the house and the father letting her in in December. That obviously led the judge to conclude that that was the only point being relied upon.

[38] Be that as it may, I am sufficiently concerned that the result of this process is wholly unsatisfactory. The aim of the procedure was to develop a bespoke plan for each of these three needy children so that they could be looked after, if possible, in their family supported by the local authority, and, if not, in some other form of placement that meets their various needs. In order for that decision to be the best one for the children it was necessary for the court, the judge, to be fully engaged in all the detail that the professional witnesses were relying upon, and for whatever reason I am satisfied that that simply did not happen on this occasion.

[39] The outcome therefore is that the appeal must be allowed. The decision of the judge is to be set aside, and all parties agree that if that is the outcome then the only way forward is for the matter to be reheard afresh by a different judge. There is no reason why that should not be a circuit judge sitting in the Family Court at Watford, but a different judge from Judge Serota.

[40] I would hope that the hearing could come on soon. It undoubtedly would be necessary for the material before the court to be updated, and one hopes that the track record of the father in the period of six months since the main hearing concluded will increase the potential for him to continue to care for the children. But that needs to be gone into. But I hope that the fact that the oral evidence has been transcribed means that, with the willingness of the judge to read all of that, the actual hearing can be taken over a fairly short compass.

[41] We have not heard submissions on this, but for my part it would seem clear that the current arrangement of a supervision order at home with the father should remain in place, but that that order should now be converted to an interim supervision order and be kept under review by the Family Court in Watford.

[42] For those reasons variously given I will therefore allow the appeal on that basis.

LORD JUSTICE KITCHIN:

[43] I agree.

LORD JUSTICE JACKSON:

[44] I agree.

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