B (A Child), Re

In child-contact proceedings, a child’s alienation from a parent is distinct from the other parent’s implacable hostility to contact. Responsibility may rest with both parents, and the child’s wishes and feelings should not be treated as irrational or unreliable without evidential justification. The trial judge determines the weight of covert recordings after considering their relevance and the wider evidential picture. Expert psychiatric evidence is unnecessary where the judge has sufficient reliable evidence from appropriately experienced professionals and the child’s welfare would be harmed by further assessment. An appellate court will not interfere with evaluative findings based on the evidence unless a proper appealable error is shown.

The father sought permission to appeal out of time against orders made by His Honour Judge Bellamy in proceedings concerning his daughter. The orders granted him parental responsibility, provided for indirect contact, facilitated contact with the paternal family, imposed prohibited steps restrictions, and refused an application for a psychiatric report concerning the child. He also challenged an order permitting publication of the judge’s judgment.

The proposed appeal alleged procedural error, judicial bias, mishandling of covert recordings, an erroneous approach to alleged parental alienation, and failure to obtain expert evidence. The central issues were whether the findings and orders concerning contact and evidence disclosed a real prospect of success, and whether there was a compelling reason to hear a full appeal about publication.

1. Permission concerning contact and related orders refused. The judge’s findings were reached after hearing the evidence and could not realistically be challenged on appeal. The proceedings had suffered delay, but the delay did not affect the judge’s findings.
2. Alienation and implacable hostility are distinct concepts. Implacable hostility concerns a parent who is, usually irrationally and for poor motives, opposed to contact. Alienation may instead result from the conduct of both parents. The judge was entitled to find that the child had become alienated from her father, that both parents bore responsibility, and that her expressed wishes and feelings were neither irrational nor unreliable.
3. Covert recordings were admissible. The relevant question was their relevance, and the weight to be given to them was a matter for the trial judge, who had seen and heard the parties and viewed the recordings. The recordings formed only part of the wider evidential picture and were not determinative.
4. The refusal of expert psychiatric evidence disclosed no appealable error. The judge had evidence from the child, professionals and an experienced NYAS case worker, and was entitled to conclude that further assessment would be distressing, unnecessary, and contrary to the child’s need for an end to the litigation.
5. The allegation of bias was unsustainable. The judge had acted independently, including by granting parental responsibility despite opposition and by intervening to facilitate contact with the paternal uncle.
6. Publication. Under CPR 52.36(b), there was a compelling reason to hear a full appeal concerning publication. The judge had purported to give guidance on covert recordings without approval or endorsement from the President of the Family Division, the Law Commission or the rules committee. Permission on that issue was adjourned, with any appeal to follow if permission were granted; the impact of publication on the child remained open.

• Court of Appeal (Civil Division): Permission to appeal was refused concerning contact, parental responsibility, the prohibited steps order and the application for expert evidence. The application concerning publication of the judgment was adjourned for further oral consideration, with an appeal to follow if permission were granted.
• Leicester County Court and Family Court: His Honour Judge Bellamy made the orders challenged by the father, including orders concerning parental responsibility, contact, prohibited steps, expert evidence and publication of the judgment.