D (Children), Re

In child-welfare appeals, the Court of Appeal should not second-guess a trial judge’s choice among permissible arrangements within a wide discretion where the reasons are clear and supported. A residence arrangement may be made conditional on compliance with specified contact, including where alternative enforcement powers are inadequate for an extreme family situation. A reasoned choice between competing expert recommendations is similarly for the trial judge. The welfare checklist need not be rehearsed mechanically where the judge confirms that all relevant factors were fully considered. Serious abuse of another child in the family is material to assessing a parent’s attitude and may mitigate criticism of that parent, but a defect in emphasis will not justify interference where it could not affect the welfare outcome.

The mother appealed, with permission, against an order made by Coleridge J in the High Court concerning the future care and contact arrangements for her two sons. The order suspended a residence order in favour of the paternal grandparents so long as the mother complied with specified contact arrangements between the boys and their grandparents. It also prohibited direct contact between the father and the boys until further order, while allowing limited indirect contact.

The appeal challenged the conditional residence arrangement, the judge’s preference between competing psychiatric and other expert evidence, the treatment of the father’s sexual abuse of the boys’ half-sister, and the judge’s application of the welfare checklist in section 1(3) of the Children Act 1989. The central issue was whether the judge had exercised his welfare discretion lawfully and within its permissible ambit.

1. Appeal dismissed. Lord Justice Thorpe delivered the leading judgment. Lord Justice Scott Baker and Lord Justice Wall agreed that the appeal should be dismissed.
2. The conditional residence order was within the judge’s wide welfare discretion. The arrangement preserved the mother’s primary care of the boys while making it dependent on compliance with specified contact arrangements with their paternal grandparents. The court rejected the submission that such an order was impermissible because it was unusual or triggered by breach of a contact order. The enhanced enforcement measures in section 11 of the Adoption and Children Act 2002 were inadequate for the extreme situation that had developed.
3. The judge was entitled to prefer the recommendations of Dr Cameron and the NYAS Guardian over those of Dr Jones, and to prefer Professor Grubin’s assessment of the abuse. The judge had explained the basis of those choices, including the experts’ differing involvement in the case, their opportunities to observe the evidence, and their assessment of practical future arrangements. The Court of Appeal would not substitute its own view for a reasoned choice within the trial judge’s discretion.
4. The challenge based on section 1(3) of the Children Act 1989 failed. The judge stated that he had fully considered all the factors in the welfare checklist after they had been exhaustively canvassed during the hearing.
5. The lead judgment accepted that the trial judgment gave insufficient emphasis to the serious and prolonged sexual abuse of the boys’ half-sister. That abuse was relevant to understanding the mother’s attitude and mitigated criticism of her response concerning the boys. Nevertheless, the shortcoming did not affect the outcome because the judge was deciding the least damaging future management of the two boys and had excluded direct contact between them and the father.
6. Lord Justice Wall additionally observed that any later review of direct contact would require careful consideration of whether the father accepted the findings of abuse and showed genuine contrition. Those observations concerned the future review rather than the correctness of the order under appeal.

The appeal was dismissed. Direct contact between the father and the boys remained prohibited until further order, with a review hearing arranged and a further guardian’s report to be obtained.

• Court of Appeal (Civil Division): On 29 July 2009, the court dismissed the mother’s appeal.
• High Court of Justice, Principal Registry of the Family Division: Coleridge J made the order under appeal in Exeter on 2 July, including the conditional residence arrangement and restrictions on direct contact between the father and the boys.