B (Children), Re

In child-contact proceedings, the children’s wishes are only one element of welfare. The court must separately address expert evidence of psychiatric harm. Where the only appropriately qualified child psychiatrist makes a specific diagnosis, the court must proceed on the basis that the diagnosis is correct. Observations from supervised-contact workers cannot substitute a contrary psychiatric opinion. The court must balance the risks of continuing contact against those of ending it. A finding of serious existing disorder and likely deterioration may effectively determine that balance, so continued contact cannot be ordered without a fundamental change in the relevant adult or child mental health. An appellate court may intervene where the trial judge has misunderstood or failed to engage with material diagnostic evidence.

Following extensive county court proceedings, a recorder ordered the father’s contact with his two daughters to continue at a supervised contact centre, reduced to six occasions a year. The mother appealed.

The appeal concerned the recorder’s treatment of conflicting evidence. Psychiatrists and the court welfare officer supported indirect contact because B had been diagnosed with Generalised Anxiety Disorder and N was at risk of deterioration. The contact centre considered the relationship manageable. Although the recorder rejected the conclusion that the children did not wish to see their father, he also stated that it would be wrong to conclude that they were anxious about contact or that contact contributed to psychiatric anxiety. The central issue was whether that conclusion failed to engage with the decisive psychiatric evidence.

1. Disposition. The appeal was allowed and the recorder’s order was set aside. The Court of Appeal did not impose an additional restriction under section 91(14), because it lacked sufficient information about developments since the original hearing.
2. Assessment of expert evidence. The recorder had inaccurately cited Dr Black’s report as attributing the serious psychiatric disorder to the mother, whereas the report attributed it to B. He also passed over important parts of the report, including the specific diagnosis of Generalised Anxiety Disorder and the girls’ double genetic vulnerability. Those matters raised serious concern that he had not understood the gravity of the evidence.
3. Psychiatric diagnosis. Dr Black was the only expert qualified to diagnose the children’s psychiatric condition. It was therefore not open to the recorder to decide the case on a basis contrary to her diagnosis. The Accord Centre could provide evidence about the children’s behaviour and wishes, but it could not offer a contrary psychiatric diagnosis or question hers.
4. Welfare balance. The recorder was entitled to prefer the contact-centre evidence on whether the children wished to see their father. Wishes were only one ingredient of welfare. The court also had to balance the risks of continuing contact against the risks of terminating it. Once B’s serious disorder and N’s potential deterioration were accepted, the evidence effectively determined that balance: continued contact could not safely continue without a fundamental change in the mental health of the adults or children.
5. Judicial agreement. Lord Justice Thorpe delivered the only reasoned judgment. Lord Justice Rix and Lady Justice Arden agreed.

• Court of Appeal (Civil Division): On 25 October 2002, the appeal was allowed and the order below was set aside: [2002] EWCA Civ 1666.
• Willesden County Court: The recorder ordered supervised contact at the Accord Centre to continue six times a year.