M (a child), Re

In child welfare proceedings, a discretionary residence decision may be set aside where the judge’s method of evaluation vitiates the exercise of discretion. A judge may reject relevant expert or professional evidence, but must explain fully and clearly why it is rejected and what weight is given to it. Acceptance of a parent’s oral evidence does not remove that duty. Short-term negative saliva tests may be inadequate evidence of abstinence from a long-standing drug addiction. A private, post-hearing communication with a material witness’s line manager, without notifying the parties or inviting submissions, creates an appearance of unfairness. Where the appellate court cannot identify one obvious welfare outcome, the proper remedy may be a rehearing rather than substitution of its own decision.

Private law proceedings concerned residence and contact arrangements for four children following a series of interim orders. On 12 July 2007, Miss Recorder Cameron discharged the previous orders, made a shared residence order and directed that the children should reside principally with their mother during school term time. The father appealed, challenging the assessment of the mother’s claimed cessation of amphetamine use, the treatment of professional evidence and the fairness of a private telephone discussion between the Recorder and a social-services manager after the evidence and submissions had concluded.

The issues were whether the Recorder’s exercise of discretion was vitiated by her approach to the evidence and whether this court should substitute its own welfare decision or order a rehearing.

1. Appeal allowed. The Recorder’s order of 12 July 2007 was set aside. The residence and contact applications were directed to be reheard by HHJ Cryan, an experienced full-time circuit judge. Pending the rehearing, arrangements were to revert in substance to those under the order of 15 December 2006.
2. A family judge remains entitled, and indeed bound, to decide the welfare issue rather than simply adopt expert or professional opinions. However, where relevant expert evidence is conscientiously reached, well reasoned and clearly expressed, a judge who rejects it must analyse it and explain fully and clearly why it is rejected and why a different course is taken. The Recorder recorded the opinions of the psychiatrist, psychologist and social worker but did not properly analyse their reasoning, explain their rejection or give their conclusions appropriate weight. That failure vitiated the exercise of discretion.
3. The Recorder was plainly wrong to rely on the mother’s assertion that an eleven-year amphetamine addiction had been overcome, supported principally by short-term saliva tests. Such tests had a limited detection window. The formal hair test showed increasing amphetamine use and was not undermined by evidence of collection or testing error. The proper question was what effect the reliable test evidence had on the mother’s credibility, rather than whether the test should be doubted because the Recorder believed her.
4. Even established abstinence would have been only one factor in the welfare assessment. It could mark the beginning of a process and reveal other serious difficulties relevant to parenting capacity. The Recorder failed to address that issue.
5. The Recorder’s private telephone conversation with the social worker’s line manager after the close of evidence and submissions was inappropriate. It concerned matters potentially relevant to the decision, including the social worker’s future role, and the parties were not informed or given an opportunity to comment. It created a clear impression of unfairness.
6. The Court of Appeal declined to substitute its own residence decision. It was not its function to determine whether the professional evidence was right or wrong, and there was no single obvious welfare outcome. A rehearing was therefore the proper course. Hair testing covering the period before the rehearing was identified as critical evidence and as a proper public-funding disbursement.

• Canterbury County Court: On 12 July 2007 Miss Recorder Cameron discharged previous orders, made a shared residence order and directed that the children should reside principally with their mother during school term time.
• Court of Appeal (Civil Division): The appeal was allowed. The order under appeal was set aside, the applications were remitted for rehearing before HHJ Cryan and interim arrangements were restored pending that rehearing.