M v M (Rev1)

An appellate court should respect a trial judge’s fact-finding and welfare assessment unless an error of fact or law is shown or the decision falls outside the generous ambit of discretion. Fresh evidence will not justify reopening a concluded fact-finding hearing where it undermines only a non-essential finding. A Children’s Guardian may express a view on whether the statutory care-order threshold is crossed, but that view is not binding because the issue is for the judge. The judge need not explain divergence from the Guardian’s view as though it were expert evidence within the Guardian’s expertise.

The proceedings arose after the mother suffered a serious wrist wound and alleged that the father had assaulted her. The children were placed with foster carers during public law proceedings. His Honour Judge Bromilow found that the father had caused the injury, later refused applications to reopen that finding, dismissed the local authority’s care-order application, and ordered residence with the mother and generous contact with the father.

The father brought three appeals concerning the fact-finding, the refusal to reopen, and the welfare orders. The local authority appealed the dismissal of its care application, arguing that the section 31 threshold had been crossed. The central issues were whether the findings required reconsideration, whether the welfare decision was outside the judge’s discretion, and whether the threshold decision disclosed an error of law.

All four appeals were dismissed and the orders made by His Honour Judge Bromilow were confirmed.

1. The challenge to the finding that the father had assaulted the mother failed. Although telephone evidence undermined one alleged admission at approximately 3.45 pm, the finding did not depend on that evidence alone. Other alleged admissions and the father’s implausible account, particularly his explanation concerning the knife, provided substantial support for the conclusion.
2. The applications to reopen the fact-finding were properly rejected. The first application relied principally on transcripts which undermined one finding that was not essential to the causation conclusion. The later forensic and other material was of similarly limited significance. None of it required the fundamental reinvestigation of the case.
3. The judge had considered the psychiatric evidence as a whole. Dr Fear did not say that the mother was unable to care for the children, even if she had a personality disorder. The judge was entitled to recognise risks arising from depression and possible personality difficulties while relying on insight, support, treatment and a crisis-rescue plan. The choice between residence with one parent and generous contact with the other, or shared residence, fell within the generous ambit of the judge’s welfare discretion.
4. The local authority’s threshold appeal also failed. The judge had addressed both alleged past harm and the risk of future harm and was entitled to conclude that the section 31 threshold had not been crossed. The Children’s Guardian was entitled to express a view, but it was not binding. A duty to explain divergence arose where the Guardian gave an opinion within her expertise, not on the legal question for the judge.
5. The court observed that, even if the threshold had been crossed, the local authority’s proposed care plan would not have altered the welfare outcome. The judge would still have dismissed the care application and made residence and contact orders. Thorpe LJ also deprecated the refusal by a psychologist to release psychometric data to a psychiatrist, emphasising the importance of interdisciplinary collaboration in family justice.

• Court of Appeal (Civil Division) The father’s three appeals and the local authority’s respondent’s appeal were dismissed. All orders made below were confirmed.
• Bristol County Court His Honour Judge Bromilow dismissed the local authority’s care-order application on 20 July 2009 and made residence and contact orders on 5 August 2009.