Re W (Residence)

Wednesday 24th February 1999

The history behind this appeal is unusually brief. The parents married on 30th June 1996 and their only child, T, was born on 3rd December 1996. The parties separated on 21st November 1997. When T was about 17 months of age, during a period of shared care, he sustained a burn injury to his hand for which he was paediatrically assessed in the local hospital and it was noted that he had a bruise of unexplained origin on his palm. Child protection procedures were duly initiated and the report of the relevant representative of the social services department was to the effect that T had suffered an accident that any child of that age could have suffered. Although the parties had agreed a regime of shared care, there were extensive proceedings in the Middlesbrough County Court initiated by the father's ex parte application for interim residence, lodged on 25th November, four days after the separation.

The arrangement for shared residence was unsatisfactory to both parents and a court welfare officer carried out a thorough investigation. She was in the course of her investigation when T was admitted to hospital for assessment, and she was able to speak contemporaneously to the social worker who was carrying out the child protection investigation. She delivered her written report on 8th June 1998. For reasons which have not been revealed there was a considerable delay before what effectively were cross-applications for residence came on for hearing before his Honour Judge Bryant on 6th November 1998.

The welfare officer and the parties gave extensive oral evidence, and we have a transcript of the entire proceedings which runs to 58 pages. The last six of those are taken up with the judge's relatively brief judgment. His conclusion was that the father succeeded in his application and the mother failed in hers. However, he effectively prolonged the arrangements for shared care by saying at the conclusion of his judgment, first:

"there is no particular reason why contact should not be almost as extensive as it is at the moment"

and then in the next paragraph:

"What I envisage is that contact should continue … at or approaching the present level".

Against that conclusion the mother sought leave from this court. Leave was granted on paper and the appeal fixed for hearing today.

Miss Cox for the mother has lodged a skeleton argument in which she rightly identifies the issues as follows:

(1) "Did the Learned Judge wrongly exercise his discretion in rejecting the recommendation of the Court Welfare Officer … that residence be awarded to the mother?"

(2) "Did [he] fail to give adequate reasons for his rejection of [that] recommendation and fail to afford the court welfare officer an opportunity to consider any misgivings that he might have had [about her opinion]?"

She further questions whether the judge was wrong in principle and on the evidence in basing his decision on the ground that the father would be in a better position than the mother to facilitate contact, particularly when the welfare officer had been of the contrary opinion.

Miss Burke, who represents the father in this court as she did in the court below, has equally filed a skilful skeleton in which she seeks to support the judge's conclusion and reasoning by emphasising that it was for the judge to make the essential assessment of the witnesses, including the welfare officer. He plainly, if not extensively, explained his rejection of the welfare officer's recommendation by his assessment of her in the witness box as pre-disposed towards a placement with the mother simply because she was the mother. Further, says Miss Burke, he plainly explained that in a finely-balanced case, the factor that tipped the scale in favour of the father was his greater capacity to facilitate contact, based on a number of considerations, including the proximity of his home to the mother's workplace, as well as his general attitude. So, says Miss Burke, the parties themselves at least had their right to a fully reasoned and explained conclusion.

Although Miss Burke has argued her case very attractively and said everything that could possibly be said in support of the judgment, I am in no doubt at all that the conclusion at which the judge arrived is supported by reasoning that is profoundly flawed and, further, departs in a number of crucial respects from observations and conclusions reached by the court welfare officer, the rejection of which is not only not explained, but not even alluded to.

In order to substantiate that opinion, I think it is helpful to carry out a brief analysis of the judge's judgment. He explains simply and sufficiently the relevant history and circumstances between pages 51G and 53A. He then comes to the positive elements in the case. He says between B and D at page 53:

"Both parents clearly love T. Both are prepared to do their best for him. Both are capable of caring for him and, in many ways most important of all, they do appear to be capable of co-operation and unlike many parents who one sees in this court they behave sensibly towards each other and on occasions go out with T as a threesome."

As far as it goes, that is plain enough. But already it is to be noted that he makes no reference at all to the welfare officer's estimation that the parents' capacity to co-operate was at a very superficial level and that beneath that level there was continuing antagonism.

More important, he then continued by expressing his concerns. Between E and F on 53 he expressed his concerns about the father. They were lifted from the welfare officer's report, where she had said that the father was over-protective and in some ways less competent than the mother. However, having drawn that material from the welfare officer, he then qualifies it by saying —and I quote because this passage is important:

"… although I have to take into account the fact that I detected a prejudice in the court welfare officer who seemed to believe that a young child's place was with its mother unless there were good reasons to the contrary, which is not I think a proper approach."

By that passage of criticism he deflects the force of the welfare officer's observations of the father. It is notable that it is the only passage in the judgment in which the judge makes any reference to the court welfare officer's contribution. I will come in due course to consider what is the real weight of the criticism of the welfare officer there expressed.

Returning to the analysis of the judgment, the judge then moves to his concerns about the mother. They...