S-G (Children), Re

In children proceedings, a judge must evaluate a guardian’s recommendation independently. If the judge disagrees, clear reasons are required. Agreement is lawful where the judge has considered the evidence and concludes that the recommendation is well founded. A welfare judgment may be imperfectly expressed and still stand if, read as a whole, it contains clear findings, identifies the decisive welfare considerations and demonstrates a permissible conclusion. The risk of emotional harm, parental alienation and fracture of a sibling group may justify transferring care where that is judged less harmful than continuation of the existing arrangements. Repeated, clear and credible accounts by a child, supported by other evidence and accepted by an experienced guardian, may support findings of physical assault.

The parents of four children separated after the father had left the family home. The eldest child subsequently moved to live with the father. Proceedings under the Children Act followed, and the children were later joined as parties with a guardian ad litem.

After an adjourned trial, the three younger children changed their expressed wishes. The guardian nevertheless recommended that all four children live with the father. HHJ Hughes ordered the transfer of care, contact with the mother and a later review. The mother appealed, alleging inadequate consideration of the welfare checklist, impermissible reliance on the guardian’s recommendation and an unsupported finding that she had assaulted the eldest child. The central issue was whether the judge’s reasoning, considered as a whole, provided a lawful basis for the order.

The Court of Appeal granted permission to appeal and unanimously dismissed the appeal.

1. Guardian’s role. Lord Justice Thorpe held that the guardian’s role was not merely to provide a report. Having reached clear conclusions that the children had suffered emotional harm and faced a risk of future harm in the mother’s care, the case acquired a quasi-public law complexion. The judge nevertheless had to assess whether the guardian’s analysis was realistic and well founded. Lord Justice Wall confirmed that a judge who disagreed with a guardian or CAFCASS officer would have to explain the disagreement clearly. However, paragraph 43 did not show that the judge considered herself bound to agree. Read fairly, it showed that she accepted the recommendation after considering the evidence and could identify no proper basis for departing from it.
2. Welfare analysis. The court accepted that the judgment was incomplete, that its reference to the welfare checklist was perfunctory and that it did not set out the competing factors in a structured way. Re G (Children) [2006] UKHL 43 was relevant to the need for careful consideration of the checklist in difficult cases. Nevertheless, the judgment had to be read as a whole. It contained extensive findings about the mother’s conduct, the children’s emotional welfare, contact, stability and the father’s ability to prioritise their needs. Paragraph 43 identified the decisive welfare consideration. The deficiencies in expression therefore did not make the conclusion impermissible.
3. Evidence of harm and assault. The court rejected the challenge based on Re H and R (Child Sexual Abuse: Standard of Proof) 1 FLR 80. The judge had ample material for finding that the mother had assaulted the eldest child, including repeated and sufficiently clear accounts, corroboration from a sibling, the mother’s evidence about losing her temper and the guardian’s conclusion that the accounts were credible and had not been fabricated or misinterpreted. More importantly, the findings that the mother had rejected the eldest child and alienated the other children created a grave risk of fracturing an important sibling group. The judge was entitled to conclude that the disruption of moving the children was less harmful than the continuing risk of emotional harm.
4. Review and disposal. The order contemplated a later review, including consideration of the father’s financial security and contact arrangements. That did not undermine the conclusion reached on the evidence available at trial. The appeal was dismissed.

• Court of Appeal (Civil Division): On 13 May 2008, permission to appeal was granted and the appeal was dismissed.
• Telford County Court: HHJ Hughes made an order on 11 April 2008 transferring the children’s care to the father, providing for contact with the mother and directing a later review.