Y-M (A Child)

Where a judge relies on a clinician’s opinion to depart from a welfare officer’s recommendation on child contact, the opinion must be assessed on a properly informed basis. A clinician’s report cannot safely support the decision where the clinician has not considered a material welfare report setting out the relevant history and concerns. If that omission undermines the evidential foundation of the order, the appeal may be allowed and the matter remitted for rehearing. In proceedings involving litigants in person, directions should, where practicable, ensure that a jointly instructed professional receives a clear statement of the issues and relevant material.

The mother appealed against a Reading County Court order permitting monthly supervised contact between the father and their young daughter. The order departed substantially from a CAFCASS recommendation that contact should await the father’s engagement with anger management support. The judge relied on a report from the father’s GP stating that no anger management problem had been identified. During the appeal, the GP confirmed that he had not read the CAFCASS report. The central issue was whether the judge was entitled to rely on the GP’s opinion and maintain the contact arrangements.

Appeal allowed and matter remitted. The Court of Appeal held that the lower court’s reliance on the GP’s report was unsustainable. The GP had been asked to address whether the father had an anger management problem, an issue arising directly from the CAFCASS report and its recommendations. However, the GP had neither read that report nor considered the history which had led the CAFCASS Officer to recommend anger management support.

That omission materially undermined the evidential basis for the judge’s conclusion that no anger management programme was required. It also undermined the judge’s decision to reinterpret the CAFCASS recommendation and permit contact. The appeal therefore had to be allowed and the question of appropriate contact reconsidered on a properly informed evidential basis.

The court gave directions for the remitted proceedings:

1. The matter was remitted to the Reading County Court for an expedited hearing.
2. The hearing was to take place before a different judge, so that both parties could have confidence in the further conduct of the case.
3. The CAFCASS Officer was to collaborate with the GP by sending him a succinct statement of the history relied upon, together with the CAFCASS report.
4. The CAFCASS Officer was to attend the remitted hearing and file and serve a supplemental report recording that engagement and annexing any further opinion from the GP.

Lord Justice Longmore and Lord Justice McCombe agreed with Lord Justice Thorpe. The court also observed that, in heavily contested proceedings involving litigants in person, clearer directions and a joint letter of instruction may be required to ensure that a professional understands the issues and material to be considered.

1. Court of Appeal (Civil Division): In [2013] EWCA Civ 143, the appeal was allowed and the matter was remitted to the Reading County Court for an expedited rehearing before another judge.
2. Reading County Court: HHJ Simon Oliver ordered monthly supervised contact after relying on the father’s GP report and departing from the CAFCASS recommendation.