U (Children : Residence order)

An appellate court reviewing a family welfare decision should assess the judgment in its full procedural and evidential context. A concise or ex tempore judgment is not inadequate merely because it does not reproduce a checklist or analyse every factor separately. The question is whether the reasoning, read in context and having regard to the judge’s experience, shows that the relevant welfare considerations were addressed. Where children are not separately represented and no Cafcass officer has obtained their wishes and feelings, the judge must ensure that their views are heard by other reliable means. An expert’s factual opinion outside the proper scope of expertise does not invalidate the process where the judge independently decides the issue.

The parents, who had four children, separated after serious conflict. Following a fact-finding hearing reported at [2015] EWFC 535, Keehan J conducted a further welfare hearing. In his judgment at [2016] EWFC 14, he found that the mother had caused the children emotional harm through her entrenched hostility towards the father and ordered that the two boys live with the father. No child arrangements order was made for the two girls, and contact with the mother was suspended.

The mother appealed, alleging inadequate welfare analysis, failure to hear the children’s wishes and feelings, failure to appoint a children’s guardian, and improper reliance on an expert’s opinion. The central issue was whether the judgment and decision-making process were legally inadequate.

Appeal dismissed. The Court of Appeal upheld the order that F move to live with the father, with Y remaining there, and rejected the challenges to the welfare analysis, the children’s participation, and the expert evidence.

1. Appellate review. The court endorsed the necessary caution when reviewing a family judgment, particularly a concise judgment delivered under practical time constraints. It applied the principles discussed in Piglowska v Piglowski [1999] 1 WLR 1360 and Re B (Appeal: Lack of Reasons) [2003] EWCA Civ 881. An appellate court should avoid detailed textual analysis divorced from the case context and should have regard to the judge’s seniority, experience, continuity of involvement and the legitimate virtue of brevity.
2. Welfare evaluation. A judge need not slavishly reproduce the welfare checklist or analyse every relevant factor in separate paragraphs. The evidence and the history showed that the judge had considered the children’s wishes and feelings, the risk of emotional harm, each parent’s capacity to care for the children, and the effect of changing residence. The judge was deeply familiar with the family and had worked with the Anna Freud Clinic over many months. His conclusion was not an impermissible one-point assessment based only on the mother’s failings.
3. Children’s participation and representation. Although the circumstances identified in Family Procedure Rules 2010 PD 16A might, with hindsight, have supported joinder, no formal application for joinder or a rule 16(4) guardian was made, and the issue was not pursued below. The complaint therefore could not succeed as a freestanding ground. In the absence of separate representation or a bespoke Cafcass inquiry, the judge nevertheless had to take particular care to hear each child’s wishes and feelings by other means. The older children’s views were recorded through Dr Asen’s reports. The absence of separate evidence about Y did not make the decision unsafe in the circumstances.
4. Expert evidence. Dr Asen went beyond his proper role by expressing a view on who had cut Y’s hair. The judge did not rely on that opinion. He independently assessed the parents’ evidence and the recording and reached his own finding. The expert’s overreach therefore did not infect the welfare decision.

1. Court of Appeal (Civil Division) — [2016] EWCA Civ 1332: appeal dismissed.
2. High Court of Justice, Family Division — Keehan J, [2016] EWFC 14: made child arrangements orders concerning the children’s residence and suspended contact with the mother.