PP v JP & Ors

An appellate court should respect the trial judge’s advantage in seeing witnesses and should intervene only where the decision falls outside the reasonable band of discretion, is plainly wrong, takes account of irrelevant matters, or fails to address material matters.

Where an expert has assessed a family within the proper scope of the instructions, the court must evaluate the expert’s assessment and the reasoning supporting it. It should not reject the evidence merely by re-examining the underlying factual material. A children’s Guardian’s evidence must also be assessed independently and given appropriate weight.

The appellant parent appealed an order made by Recorder Coles in the Family Court at Derby concerning the residence and education of two children. The children had been home-schooled for several years following their parents’ separation. The recorder rejected the evidence of an experienced consultant child psychologist and consequently gave minimal weight to the children’s Guardian’s evidence.

The appeal concerned whether the recorder had wrongly rejected the expert and Guardian evidence, including evidence about possible ASD traits, anxiety, social development, parental care and the children’s welfare. Permission to appeal was granted and the merits were heard by the High Court.

1. Appeal allowed. The order could not stand because the recorder had wrongly rejected the evidence of Dr Matthews and had consequently failed to give proper weight to the Guardian’s evidence. The matter was to be reconsidered.
2. An experienced child psychologist was entitled to report that she had observed no ASD traits in the children. That opinion was within the proper scope of her instructions, notwithstanding that she was not an ASD specialist and had not conducted a formal diagnostic assessment.
3. The recorder had wrongly concluded that there was no evidence that the mother viewed the children as having ASD traits. The evidence included the mother’s account to the expert, her reference to diagnostic criteria, and the children’s understanding of what their mother had told them.
4. The court had placed excessive emphasis on the underlying factual basis of the expert’s assessment and insufficient emphasis on the assessment itself and the factors leading to the expert’s conclusions. The expert’s answers in oral evidence about the risks associated with each parent’s care and the parents’ ability to meet the children’s needs also required proper consideration.
5. The Guardian’s evidence was not wholly dependent on Dr Matthews. The Guardian had long experience of the family, had met the children during both sets of proceedings, and had given an analysis supporting a change of residence. Her evidence required independent assessment and appropriate weight.
6. The appellate court remained conscious of the trial judge’s opportunity to see and hear the witnesses. It could interfere only where the judge had exceeded the reasonable band of discretion, reached a plainly wrong conclusion, taken irrelevant matters into account, or failed to take account of material matters. Those circumstances were established here.
7. The issue of alleged avoidant coping and interference with the children’s relationship with their father was comparatively less important. The evidence showed that the children retained close relationships with both parents and did not establish interference with contact.
8. Further directions were required concerning the children’s education pending rehearing. The court emphasised the importance of avoiding further delay, given the children’s prolonged absence from mainstream schooling.

• High Court (Family Division): Appeal from an order of Recorder Coles in the Family Court at Derby. The appeal was allowed and the matter was directed to be reconsidered.
• Family Court at Derby: Recorder Coles delivered judgment on 7 March 2024 concerning the children’s residence, education and welfare. The judgment’s citation was not stated.