T (Children)

An appellate court may set aside a child residence decision where the judge materially misunderstands or fails to evaluate crucial evidence. Particular care is required when departing from jointly instructed expert evidence about the likely effects and practical feasibility of changing residence. The court must confront how any proposed transition will be implemented and its likely impact on the children. Strong criticisms of professional witnesses require a proper evidential foundation. Setting aside a residence order does not justify abandoning parental contact. Where direct contact is not presently achievable, the court should consider workable indirect contact and maintain the possibility of restoring a relationship.

The parents separated after having two children, B and R. Residence was initially with the mother and the father had contact. Following prolonged difficulties, the father sought residence and the mother sought discharge of the contact arrangements.

After a contested hearing, Recorder Wilson granted the father residence and directed an almost immediate transfer of both children. The mother appealed, alleging material errors in the treatment of a child’s video-recorded account, the evidence of consultant child psychiatrist Dr Newth, and the evidence of general practitioner Dr Goodman. The central issues were whether the recorder’s reasoning was sufficiently founded on the evidence and whether the proposed change of residence had been properly assessed and made practicable.

1. Appeal allowed. The order made by His Honour Judge Morris on 31 May 2002 was set aside. The father was to have indirect contact in the form of photographs, school reports and cards, and was free to send cards and presents reasonably.
2. The recorder’s treatment of the video evidence was fundamentally defective. She probably had not viewed the relevant interview. If she had viewed it, she had failed to place it in its proper context or give it the weight it deserved. A decision reached without considering the available account of the child, given close in time to the events and in a skilled interview, was fatally flawed.
3. The recorder materially misunderstood and inadequately addressed Dr Newth’s evidence. The expert’s opinion was not based on accepting the allegations of physical abuse. Her central point was that changing residence would cause substantial distress and offered no realistic prospect of improvement. The recorder also failed to address the practical problem of physically moving the children and could not depart from the expert’s conclusion without full and convincing reasoning.
4. The criticisms of Dr Goodman were unsupported or based on misunderstood evidence. The recorder should not have adopted criticism from closing submissions without a proper evidential foundation. The professional guidelines invoked concerning child interviews did not govern a general practitioner’s ordinary consultation with a child presenting physical injuries.
5. The court stressed that contact remains the norm and an achievable objective, even in a highly conflicted case. The children’s exclusion from their father’s life should not be endorsed. Indirect contact was appropriate initially, with professional and social assistance directed towards improving the family’s relationships.

Mr Justice Ferris agreed, emphasising the unfair treatment of Dr Goodman and Dr Newth, the unjustified lifestyle criticisms, and the recorder’s failure to confront the practical and emotional consequences of the proposed transfer.

• Court of Appeal (Civil Division): Appeal allowed. The order of His Honour Judge Morris dated 31 May 2002 was set aside, and indirect contact arrangements were ordered.
• Worcester County Court: Recorder Wilson granted the father residence of both children following a four-day hearing. The subsequent order directed an almost immediate transition to the father.