Case No: B4/2008/2205

Neutral Citation Number: [2008] EWCA Civ 1388
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRADFORD COUNTY COURT
(HIS HONOUR JUDGE CLIFFE)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 13th November 2008

Before:

LORD JUSTICE THORPE
LORD JUSTICE LAWRENCE COLLINS
and
LORD JUSTICE GOLDRING
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IN THE MATTER OF L (A Child)

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Ms S Shaikh (instructed by Switalski’s Solicitors) appeared on behalf of the Appellant.
Ms S Greenan (instructed by Philippa Murray & Co) appeared on behalf of the Respondent.
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Judgment
Lord Justice Thorpe:

1.	Wilson LJ, having carefully considered the application for permission lodged by Ms Shaikh on behalf of the mother, directed an oral hearing on notice with appeal to follow and that is the exercise that we undertake this morning.

2.	The case comes from the Bradford County Court and was heard by HHJ Cliffe sitting in Leeds on 18 July of this year.  He had the responsibility of taking a narrow decision as to whether the relevant child, D, who is fifteen and a half years of age, should be informed of his true paternity at the commencement of the present academic year in September 2008 or at the conclusion of that year, June 2009.  

3.	Before the court were the biological father in person, the respondent mother and the solicitor for the guardian.  The proceedings in the court commenced in 2006 when D’s father sought an order for contact.  That was a pretty unrealistic application, since the father had been removed from D’s life some two months after D’s birth.  It seems that at that early stage of D’s life the father was sentenced to an extensive term for armed robbery.  Shortly thereafter D’s mother formed a relationship with Mr K, and D had been brought up not only as a member of the newly formed family but in the belief that Mr K was his biological father.  So there was an elder child of Mr K, D, and then two after: born children of the union between Mr K and D’s mother.

4.	The question of contact could not obviously be addressed until first the question of D’s knowledge of his true paternity had been determined.  Early in the proceedings D’s mother was completely opposed.  The issue seemed to evaporate when the parents discussed the question at the outset of the hearing before HHJ Cliffe.  The mother’s agreement to inform D at the end of the current academic year initially seemed reasonable to the applicant.  However, as the judge records in paragraph 10 of his judgment, he altered his position, having heard the evidence of the expert psychologist Mr Parr.  That shift obliged the judge to decide the narrow question: should D be told at the beginning or end of the academic year?

5.	Now a point that must be stressed is that D is a child with considerable problems. We know from a letter of 13 October 2006 written by Dr Maura Ellis, consultant child and adolescent psychiatrist, that D has been in the care of the local Child and Adolescent Mental Health Service for over ten years.  He was diagnosed with attention deficit hyperactivity disorder in November 2000 and he has been on regular medication thereafter, daily medication, and he is seen by the consultant every quarter.  It may be that that is not the full extent of his disorder; it may be that he also suffers from Asperger’s, but in the letter to which I have referred Dr Ellis expressed an opinion in her second paragraph.  She said:

“Children with ADHD benefit from clear boundaries and structure and struggle with changes in routine.  However, I would suggest that any child would have difficulty coping with an absent father who suddenly makes contact after 11 years.  Given that D is not aware that his stepfather is not his biological father, the news would have a massive impact on him and would certainly result in a deterioration in his behaviour and also his performance at school.”

6.	During the interlocutory stages, apparently, D’s mother expressed the firm wish that Dr Ellis should not be involved in the proceedings.  Accordingly, there was an agreement between the parties that a clinical psychologist, Mr Parr, should be instructed to give his advice, jointly by all the parties.  He gave his written opinion in September 2007 and amended it twice at the request of the mother’s solicitors.  He also addressed two further questions that were not covered in his original report: would the disclosure to D of his parentage affect the ability of his mother to provide primary care, and what would be the effect of disclosure on the wider family, and how this would impact on D and his mother’s ability to care for him.  In his addendum Mr Parr essentially said that he could not address those questions since he had not met any member of the family and had only carried out the paper exercise.

7.	That Mr Parr was aware of the involvement of Dr Ellis is plain from paragraph 6.45 of his opinion when he said:

“I was not inclined to ask Dr Ellis about her views on this matter. Dr Ellis and her colleagues have provided valuable support to D and his family over a number of years and I do not wish to risk compromising this relationship.”

From that paragraph I take it that Mr Parr was sensitive to the mother’s desire that Dr Ellis should play no part in the proceedings.

8.	Accordingly the letter of October 2006, of course by July 2008 a stale letter, was not considered by the judge; nor did he in his judgment refer to Dr Ellis and her potential to give important guidance on the limited issue that remained for decision.  

9.	Now the application considered by Wilson LJ was advanced by Ms Shaikh on four grounds: 1) that the judge failed to give sufficient weight to the impact on the mother as the primary carer and on the child’s family; 2) that the judge paid insufficient heed to the decision of Sumner J in Re J [2007] 1 FLR 1064; 3) that the judge failed to give sufficient weight to the impact on D and his education; and finally that the judge did not give sufficient consideration to the fact that Mr Parr’s report was based solely on a paper assessment.  None of those grounds made much impression on me, save perhaps for the first insofar as contained therein is the proposition that this mother deserved particular consideration, given the fact that: 1) she had borne the burden of caring for a very difficult child, unaided save by her current partner, all the way through his life; and 2) she would have to cope with the consequences of disclosure.  In those circumstances it is certainly arguable that obliging the mother to do the job eight or nine months earlier than she intended was simply to place upon her and on the family clearly avoidable additional stress.  But I would not found my conclusion on that consideration, given that HHJ Cliffe has delivered an impeccable extempore judgment in which he has skilfully summarised all the evidence that was before him and proceeded to carry out an impeccable balancing exercise, setting on the one hand in the scale all the considerations urged by the mother and in the other scale the oral evidence of Mr Parr and the evidence of the guardian.  Mr Parr was clearly an impressive witness because the judge described his expert evidence as “well argued” and later he said: “There is real force in what Mr Parr says about the structure of the school day”.

10.	My fundamental misgiving is that the agreement reached between the parties to exclude the evidence of the consultant psychiatrist denied the court a contribution which was at minimum highly relevant and potentially decisive.  I do not criticise HHJ Cliffe in any way.  I think it is thoroughly unfortunate that unexplained misgivings on the part of the mother resulted in a preparation that excluded the consultant altogether from the exercise.  

11.	Again, without the smallest criticism of HHJ Cliffe, coming to the case fresh, I have an anxiety which I cannot dispel that a welfare decision has been taken on incomplete evidence, not just something that might have been of some value.  What appears to be the most crucial source of evidence has gone untapped and that is no fault of HHJ Cliffe.  It is the direct result of the extent to which the mother’s wishes and feelings diverted the professionals from visiting that source.  I cannot stifle my sense of misgiving and simply dismiss the appeal on the basis that Ms Shaikh has not made good any of her grounds.  My concerns are sufficiently profound to persuade me that HHJ Cliffe needs to look at this again.  There must be an evaluation by Dr Ellis, who has not only a great deal of past experience of this patient but who has also the responsibility of sustaining him through the trauma that lies ahead.  The exercise of further investigation need not be nearly as extensive as the two day hearing in July last, and it would seem to me that if the guardian is going to maintain Mr Parr’s involvement of the case it is very important that there should be a meeting and discussion between him and Dr Ellis before any relisting.

12.	So I would propose that we should allow the appeal and direct that the issue return to the County Court to be further considered by HHJ Cliffe in the light of such further opinion and advice as is available from a collaboration between Mr Parr and Dr Ellis.  It may be that when they have spoken there will be no need for a relisting.  It may that once they have spoken it will be possible to gauge an early listing for a brief hearing.  All that lies ahead.  

13.	In my judgment something more needs to be done before the order of HHJ Cliffe is confirmed.  

Lord Justice Lawrence Collins :  

14.	I agree.  If Dr Ellis adheres to her view then I would have thought that any responsible father would accept it.

Lord Justice Goldring :  

15.	I too agree. 

Order: Appeal allowed