Re MFS (Appeal: Transfer of Primary Care) [2019] EWHC 768 (Fam) Family Division, 29 March 2019, Williams J

In categories:

The child was born in September 2010. Litigation was ongoing in respect of the child from late 2012. In March 2017, the mother suspended contact with the father, which had been taking place on alternate weekends and half the holidays. The mother then wrote to the judge, alleging that the school had demonstrated concerns for the child’s well-being and that the father’s partner had abused the child; she also alleged that the partner’s children were ‘constantly kicking’ the child between the legs. In May 2017, the father issued applications seeking a change of residence.

A s 7 report identified a concern that what the child was saying about contact was a result of influence and recommended both that a s 37 report should be undertaken and that a guardian should be appointed. The judge directed a psychological assessment of the parents. The clinical psychologist instructed was provided with the entirety of the court bundle, including the parties’ many statements and the various Cafcass reports, dating back to 2015. He met with both parents and observed contact between the child and the father. His 36-page report concluded that the father did not suffer from mental health problems. In the expert’s view the mother had persistently portrayed the father negatively, as violent, as mentally unwell and had denigrated him as a father. He considered that the child had identified with the negative and hateful feelings expressed by the mother towards the father, which in turn had made the child make allegations against the paternal family and reject the father. The expert described the case as one in which the mother alienated the father as a result of her collusion with the child against the father, describing this as emotional abuse. He described the mother as persistently seeing her own distress in others, seeing psychiatric problems in the child and the father, while considering that she herself functioned well and had no psychological problems. He observed that there was no evidence of OCD or Tourette’s disorder, notwithstanding the mother’s assertion that the child was suffering from one of these conditions. He also commented on the mother’s failure to bring the child to various appointments with him.

An addendum to this report was ordered, asking the expert to look at the child’s attachment to the parents and to consider how any change of living arrangements should be implemented and whether there was any evidence of a change in the mother’s ability to promote a relationship between the child and the father. The expert identified a positive but undeveloped attachment with the father and a possible insecure attachment of an anxious/ambivalent nature with the mother. He concluded that the child/father relationship was sufficiently positive to enable the child to make a direct transition to the father, although he noted that there would be distress. He mentioned that the mother had identified a need to make changes but noted that evidence of change was largely missing from her statement. A further addendum report seeking clarification of matters and whether they were within the expert’s area of expertise was also provided. This led to instruction of a child psychiatrist, who concluded that the child was probably suffering from an emotional disorder of childhood linked to anxiety and stress, rather than from OCD or Tourette’s. The child psychiatrist suggested that a change of residence would alleviate stress if the court concluded that the mother had encouraged the child to form an unnecessary and unrealistically negative view of the father.

The 33-page s 37 report concluded that the child had been exposed to ‘pure alienation’ by the mother, relying on evidence independent of the main expert’s reports and making only limited references to the main expert’s reports. The guardian’s report identified concerns about the mother’s ability to promote contact, based on her own discussions with the mother and her own observations about the child’s behaviour, again, making only limited reference to the expert report.

The judge made various findings, including a finding that the child did not have Tourette’s or OCD, concluding that the problem was an emotional disorder of childhood, which was situationally based. The judge made adverse comments about the mother’s credibility, finding that she would say anything to keep the child with her. The judge accepted that the child had been subject to parental alienation by the mother and found that the child’s allegations were unfounded. Concluding that the mother had not shown any willingness to take on board the unanimous recommendations of the professionals and experts, the judge provided for the child, then 8 years old, to live with the father. The move was implemented that night. The order also provided for the child to spend time with the mother, initially on a supervised basis.

After changing solicitors, the mother sought to appeal out of time, relying on the judge’s reliance on what the mother described as flawed expert evidence, which was described as a procedural irregularity, and an assertion that the order for a change of primary carer was a disproportionate one. As a result of further delays within the appeal process, by the appeal hearing date the child had been living with the father, stepmother, half-brother and step siblings for almost 6 months.

The High Court judge refused permission to appeal.

The failure to comply with the time limits for appealing was serious. In this case it had meant that the child had completed the move to his father and had begun to settle into his new existence. Given that the child had moved on the day that the decision was taken, the need for expedition had been particularly acute. The consequences of the late appeal had had a direct impact on the child’s welfare, in that it was now effectively not possible to recreate the previous arrangements without causing further upset to the child.

In cases where a transfer of primary care was the outcome and an appeal was proposed, the ideal would be for applications for permission to appeal and a stay to be made prior to the implementation of the transfer; even if this meant an urgent application to the appeal court. Whilst the court appreciated that the mother had wished to instruct a different silk, this did not mean either that an appeal could not have been lodged at an earlier stage, or that she had to wait for the availability of her first-choice silk. This had been a paradigm case for urgent action.

If the appeal itself had had merit, the court might have been persuaded to granted an extension of time, given the seriousness of the issue in play, although the passage of time was such that it would have been of far less weight in the overall evaluation, given the inevitable unsettling effect of an ongoing appeal and, more importantly, the real issue over whether a successful appeal would ultimately have any effect on the ground, given the new status quo. In the event, an extension of time would be refused. If there was any lesson to be learned from this case it was the critical importance of making timeous applications either for a stay, or for an extension of time.

Whilst the mother’s first ground concerning reliance on the expert’s report had originally been framed as a procedural irregularity, in the light of the mother’s subsequent acceptance that all of the criticisms of the report had been aired before the judge, it was more properly characterised as an assertion that judge had placed undue reliance on the expert report. Whether it was a procedural irregularity or whether it rendered the decision wrong was perhaps neither here nor there. Ultimately, the question was whether the mother could demonstrate that the expert’s report was so seriously inaccurate/unreliable/biased that it could not properly be relied upon by the judge and/or, if it was so unreliable, that it had infected all the other reports to an extent which rendered them unreliable in their conclusions and thus made any decision by the judge based on them wrong.

The mother had not been able to identify any document from any professional body or otherwise which supported her submissions that the expert had strayed beyond his area of expertise. Inevitably, in respect of a number of conditions the boundary between psychology and psychiatry might not be entirely clear and there were many cases where either a psychologist or a psychiatrist might validly opine on a matter. Clearly there were others where the issue would fall squarely and exclusively within the expertise of a psychiatrist or a psychologist. OCD was identified as principally a mental health issue and thus within the expertise of a psychiatrist, but Tourette’s syndrome was a neurodevelopmental issue which was within the competence of a psychologist. The court did not accept that any offering of an opinion by the expert in his first report as to the child’s presentation was out with his expertise. The expert’s conclusion that the child’s allegations against the father and paternal family had been caused by the negativity of the mother was a causal link that he had been entitled to make on the basis of his assessment of the parents and the child. He had specifically been asked to comment on the ability of the parents to support and promote the relationship with the other and, if they could not do so, what the impact upon the child would be. In order to answer this question, the expert had been well within his remit in expressing the views he had expressed.

Whilst it was, of course, not for an expert to determine a core fact (i.e. whether the father had hit the child) this did not prevent an expert basing his assessment on the penumbra of facts which accompanied such cases. Thus, the expert had been perfectly entitled to take into account all of the material which shed light upon the mother’s attitude to the child’s relationship with the father. It would be impossible (particularly within limits now imposed upon their length) for expert reports to make reference to every particular piece of information or evidence that they had relied upon. Of course, if their analysis and conclusions were plainly inconsistent with the weight of the evidence, that might call into question the reliability of their conclusion. However, in this case the expert’s conclusions had been consistent with the weight of all of the other evidence in the case. The expert had been able to judge whether the mother’s explanations for not bringing the child to appointments were valid or not. The fact that there was a symmetry with other examples down the years of the mother giving excuses for failed contacts tended to support the validity of his interpretation rather than to undermine it.

The expert must take into account all material facts in giving his opinion but did not have to refer to all material facts in giving his opinion. Again, it would simply be impossible for him so to do within the confines of a user-friendly and page limit compliant report. Given the judge’s finding on the mother’s credibility, it was unsustainable to assert that the expert’s failure to refer explicitly to a small number of evidential points which could be deployed to argue that the mother had been supportive of contact, in any way undermined the general tendency of the evidence or the reliability of his conclusions. In so far as it might be said that it would have been better for him to have acknowledged that there was some evidence which indicated the mother supporting contact or that he might have noted that the father’s negativity about the mother did not impact upon the child, that was a counsel of perfection and had no bearing on the reliability, objectivity, professionalism of the report or his evidence.

The conclusions that the expert had reached as to the cause of the child’s negativity were well supported by evidence from a multiplicity of sources as to the mother’s negativity about the father, which, taken together with the absence of any observable fear in the child when with his father (indeed an observably positive relationship between the child and the father) provided a sound basis for the expert’s conclusion. Given what the mother had said to the expert, which had been repeated to others including the guardian and the judge, it was quite clear that the mother had not changed her attitude to the father. Having said to the expert that she needed to change, several months later it was clear that the mother had been unable to achieve any such change. Thus, the expert’s conclusion that the child’s negativity was a product of the mother’s negativity and that she had not demonstrated a change had been neither unprincipled nor unsustainable.

The conclusions that the judge had reached as to the expert’s expertise and the reliability of his opinion were conclusions that had not only plainly been open to him but had also probably been the only proper conclusions he could have reached, on the totality of the evidence. Further, the expert’s report had been only one component in a much larger construction. The expert’s report had not been of critical significance either in the evidence of the other professionals or in the judgment itself. The s 37 report had been a detailed and extensive piece of work, drawing on a multiplicity of sources. The author had not relied unduly on the expert’s report or abdicated her responsibility in favour of simple reliance on that report. The same was true of the guardian’s analysis. The pieces of evidence had been put together in a way which created a complete picture. In jigsaw puzzle terms all the pieces were there. This was not a case of a 50-piece jigsaw where 49 pieces belonged to one picture and one belonged to another and where that one piece had been allowed to dominate the picture so as to completely alter it. The expert’s report was one piece of a jigsaw which fitted with all of the other pieces, to complete the picture which the judge had discerned.

The assertion that this was a case in which appropriate contact was being maintained by the mother was simply unsustainable. The view of all concerned was that once the spotlight shifted away from the mother, as a result of the termination of court proceedings, the problems were likely to re-emerge. In her statement of 6 February 2018, the mother had acknowledged that there needed to be a fundamental change in her perception in respect of the father, in order for the child to feel that he was permitted to have a relationship with his father. The judge’s conclusions about the mother’s evidence made it quite clear that the mother had made little if any progress in changing her perception of the father. The overwhelming weight of the evidence supported a change of primary carer. Even the mother’s own evidence supported this; both in terms of her position at the final hearing that contact should in fact be reduced and her continued negativity towards the father and inability to take on board the views of the experts or professionals.

Insofar as the judge’s decision had been a discretionary decision based on his evaluation of the evidence, it was a decision well within the parameters within which reasonable disagreement was possible. Indeed, on the evidence almost every judge would have reached the same conclusion. A decision to leave the child with his mother would have been a most unusual outcome on the evidence and would have called for a very clear explanation in support. Thus, the decision was not wrong from an appellate perspective. Rather it was right. The change of primary carer had plainly been the decision that was in this child’s best interests and it had plainly been a proportionate rather than a disproportionate order on the evidence.