M (A Child), Re

A family judge remains responsible for deciding a child’s welfare and may depart from expert opinion on placement, management and attachment. A judge cannot, however, reject a virtually unanimous specialist assessment of a parent’s underlying psychological condition merely because the parent appeared credible or composed in the witness box.

A material departure from expert and guardian evidence must be supported by reasons which engage with the substance of that evidence. Failure to distinguish clinical assessment from witness credibility, to explain the rejection of professional opinion, or to address essential safeguards for a proposed transfer of care may justify appellate intervention.

A three-year-old child had lived with his maternal uncle and older half-siblings after his mother’s death. The child’s father sought his return, while the uncle sought a residence order. The local authority, the guardian and three experts considered that the child should remain with the uncle.

Holman J held that the threshold for a public law order had not been established in relation to the child. He dismissed the uncle’s private law application and contemplated a managed return to the father. The uncle appealed only against the refusal of a residence order.

The central issues were whether the judge had misunderstood or impermissibly rejected the specialist evidence about the father’s psychological stability, and whether he had adequately explained his departure from the professional evidence concerning the child’s welfare.

1. Appeal allowed unanimously. Thorpe LJ, with whom Robert Walker LJ and Arden LJ agreed, held that a residence order should be made in favour of the maternal uncle. The judge had directed himself correctly in law, but his evaluation of the evidence was fundamentally flawed.

2. The ultimate welfare decision belonged to the judge, not the professional experts. A family judge could depart from even unanimous expert opinion on future placement, management, attachment and the balancing of risks and advantages. Such a departure nevertheless required adequate reasons engaging with the substance of the professional evidence.

3. The unanimous evidence about the father’s damaged core personality and continuing emotional and psychological instability concerned specialist clinical assessment. It was distinct from the father’s credibility or apparent composure as a witness. The judge could not properly reject that clinical assessment merely through his own impressions of the father in court.

4. The experts’ concerns extended beyond the immediate disruption caused by moving the child. They concerned the long-term risk of placing a particularly vulnerable child in the sole care of a parent with untreated instability. The judge’s brief reasoning focused chiefly on whether the child’s attachments could be transferred and did not address that underlying risk.

5. The judge also failed adequately to explain his rejection of the guardian’s strongly expressed opinion, which reflected substantial personal involvement with the child as well as the expert evidence. He did not address the experts’ alternative position that any contemplated move should be preceded by a residential assessment. Arden LJ added that the judge had not sufficiently explained his treatment of other relevant allegations and practical obstacles to a managed transition.

6. The residence order was to be accompanied by contact which protected the important relationship between father and child. Contact should be well managed and capable of expansion as circumstances permitted, under the continuing supervision of Holman J.

1. Court of Appeal (Civil Division): The uncle’s appeal was allowed unanimously. The refusal of a residence order was displaced and a residence order was made in his favour.
2. Family Division: Holman J held that the threshold under Section 31 had not been established in relation to the child, dismissed the uncle’s application for a residence order and contemplated a managed return to the father.