L (A Child)

In a child welfare appeal, an order should not be confirmed where the appellate court has a profound and unresolved concern that the decision rests on incomplete evidence, particularly when highly relevant and potentially decisive evidence from a treating clinician has not been obtained. This remains so even where the first-instance judge conducted an impeccable balancing exercise and was not at fault. The appropriate course may be to allow the appeal and remit the welfare issue for focused further evaluation. The required investigation should be proportionate and may be resolved through discussion between the relevant experts.

The appeal arose from proceedings in Bradford County Court concerning a fifteen-and-a-half-year-old child, D. His biological father had sought contact after a long absence, but D believed that his stepfather was his biological father. The immediate issue was whether D should be told the truth about his paternity at the beginning or end of the 2008–09 academic year.

HHJ Cliffe decided that disclosure should occur at the beginning of the academic year. The mother appealed, relying on the effect of disclosure on her, the family and D’s education, the decision in Re J, and the fact that the jointly instructed psychologist’s opinion was based on a paper assessment. The central issue was whether the decision could safely be confirmed without an evaluation from D’s longstanding treating psychiatrist.

1. Appeal allowed and issue remitted. The Court of Appeal directed that the timing of disclosure should return to the County Court for further consideration in light of further opinion and advice.
2. HHJ Cliffe was not criticised. He had given an impeccable extempore judgment and carried out a careful balancing exercise. The psychologist’s evidence was impressive, and the guardian’s evidence was also considered. The possible additional stress imposed on the mother and family was arguable but did not itself determine the appeal.
3. The decisive concern was that the welfare decision had been made on incomplete evidence. The treating psychiatrist, Dr Ellis, had known D and his family for more than ten years and would be responsible for supporting him through the anticipated trauma. Her evidence was therefore highly relevant and potentially decisive. Her earlier letter was stale by the date of the hearing and had not been considered, but the court required a current evaluation from her.
4. The agreement that excluded Dr Ellis from the proceedings resulted from the mother’s wishes and was not criticised as misconduct by the judge. Nevertheless, it left the court unable to resolve the welfare issue safely. The psychologist’s paper assessment could not supply the missing contribution.
5. Further investigation need not replicate the lengthy County Court hearing. The psychologist and Dr Ellis should, if the psychologist remained involved, meet and discuss the case before relisting. Their discussion might make a further hearing unnecessary or permit a short hearing.

• Court of Appeal (Civil Division): [2008] EWCA Civ 1388. The appeal was allowed and the issue was returned to the County Court for further consideration.
• Bradford County Court: HHJ Cliffe heard the matter on 18 July 2008 and decided that D should be informed of his true paternity at the beginning of the academic year.