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Cite as: [2002] 3 FCR 562, [2002] EWCA Civ 1225

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Neutral Citation Number: [2002] EWCA Civ 1225

(Mr Nicholas Mostyn QC)

The Royal Courts of Justice
London WC2
Friday 19th July, 2002

B e f o r e :





(Computer-aided transcript of the Palantype Notes
of Smith Bernal Reporting Limited
190 Fleet Street London EC4A 2AG
Tel: 020 7404 1400
Official Shorthand Writers to the Court)


MR R CLOUGH (instructed by London Borough of Camden, Legal Services, Town Hall, Judd Street, London WC1H 9LP)
appeared on behalf of the Appellant/Local Authority
MR C RICE (instructed by Messrs Hyde Jones & Allen, London NW1 9LR) appeared on behalf of the First Respondent/Mother
MR H SHAW (instructed by Messrs Cawdery Kaye Fireman & Taylor, London NW3 1DA)
appeared on behalf of the Second Respondent/Father
MS LA COINTE (instructed by Messrs Darlington Parkinson, London W5 1QX)
appeared on behalf of the Third and Fourth Respondents/Guardian ad Litem



Crown Copyright ©

  1. LORD JUSTICE THORPE: This appeal focuses on the interface between private law and public law proceedings concerning two young children, who are respectively almost six years of age and three years of age. They are both boys. As the judge in the Family Division, Mr Nicholas Mostyn QC, emphasised in his judgment, there is a triangular relationship between the father, the mother and the father's wife. The adults are respectively the father, about 48 years of age, and both the mother and father's wife, about 42 years of age.
  2. The father and his wife commenced cohabitation in 1986 and married in 1990. In 1995, at a time when their marriage was in difficulties and perhaps they were even separated, the father placed an advertisement in a magazine which led to an introduction to the mother and the commencement of an affair which has had its vicissitudes, but which has undoubtedly involved an interrelationship between the adults that they have found extremely difficult to manage and one from which they have found it very difficult to extricate themselves.
  3. One of the sad aspects of the case is that the father and his wife have been unable to have children. So the father's only children have been the product of his affair with the mother, resulting in the birth of O on 8th August 1996 and the birth of W on 8th January 1999.
  4. There has been some social work involvement in the mother's life and in the lives of the children almost from the outset. Equally from an early stage there has been a heavy involvement with the family justice system. Glancing down the chronology submitted helpfully by Mr Shaw, who represents the father, it is easy to see that a variety of Family Division judges have been involved in this case, as also have a variety of Circuit Judges.
  5. It is quite unnecessary to record in this judgment any of the history of the development of these private law proceedings between the mother and the father. Nor is it necessary to record the vicissitudes of the relationship between the father and his wife, or between the father and the mother. The general pattern has been that almost self-evidently when the marital relationship has waned, the relationship between the father and the mother has waxed and vice versa.
  6. I only note that in August 2000 the mother and father rented a flat in the south of France for a family holiday with the children. The owner of the property, Miss Bulger, lived beneath and during the course of the tenancy, both when the father was sharing the holiday and after he had left on business, she was subjected to extraordinarily disruptive behaviour (almost all of it the uncontrolled outbursts of the mother) which she subsequently described in a statement put in evidence in the proceedings. What she described were tempestuous outbursts of a very extreme character, enough to cause her, as the owner of the premises, something close to collapse; to the extent that she had to cancel the letting which was to follow immediately. I only stress this episode because it was in evidence before Mr Mostyn at the trial, and he expressly accepted the statement of the owner of the property and rejected the mother's mitigation which he described as an attempt to finesse away the complaints.
  7. It is perhaps more important to record that the local authority convened a child protection conference on 20th November 2000, and reached a decision to place both the boys on the child protection register under the category of emotional abuse.
  8. There was a substantial hearing in the private law proceedings before His Honour Judge Tyrer and at the conclusion of his judgment, on 19th April 2001, he affirmed that the father was to have unsupervised interim contact with the boys each Saturday between stated hours, and that the local authority was to forward the case by possible referral to the Munroe Centre. A District Judge gave leave for disclosure of the papers to the Munroe Young Family Centre on 29th May, and their multi-disciplinary assessment report became available on 29th June 2001.
  9. The report was signed by Dr Moore, clinical psychologist, Dr Pigott, consultant child and adolescent psychiatrist, and Mrs Odle, senior social worker. What in the light of subsequent developments is of particular significance is that on the penultimate page when asked to consider any other issues which appeared to the Munroe Centre to have become relevant during the course of their assessment, they wrote this:
  10. "If the parents continue to behave in the way that they have to date, in our view the situation is emotionally abusive to the children and the local authority may need to consider whether to institute child protection procedures. However, both parents have shown some capacity to reflect when the need for change was presented to them. Mrs [R] shows some ability to moderate her behaviour, although there remain concerns about her ongoing level of anxiety and preoccupations. Mr [B] showed some capacity to begin to reflect on his own part in events. On balance, therefore, we remain guardedly optimistic that these parents may use this assessment as a catalyst to significantly alter their behaviour and refocus their attention on to the children in a more appropriate way."
  11. It is absolutely plain that all the guarded optimism of the Munroe Centre was misplaced, in that far from the parents using the opportunity of the assessment to make significant change, if anything the conflict within the triangle of adult relationships deteriorated rather than improved. It is to be stressed that in June 2001 what the Munroe Centre had concluded was not that the children were safe providing there was no deterioration, they were saying that there would be a need to initiate or to consider the initiation of child protection procedures unless the adults significantly improved their behaviour.
  12. The father taped some telephone conversations with the mother at about Christmas time, in the course of which she undoubtedly expressed a threat that if her life did not improve she would do away with herself and with the children. The father took these recordings to the local authority on 11th February 2002. The local authority obviously had to take a view as to the seriousness of the development. Plainly they did not regard it as an immediate emergency because no action was taken until 4th March, when they applied in the Inner London Family Proceedings Court for an emergency protection order. The justices heard the application and the evidence in support and refused it.
  13. So on the following day the local authority appeared at the Principal Registry by counsel and asked District Judge Bowman to make an interim care order without notice to the mother. As is now conceded by Mr Clough for the local authority, that application was procedurally unfounded. It was not open to the local authority to pick and choose the court of application. Any application had to be initiated in the Family Proceedings Court, albeit immediately followed by an application for transfer. Equally, any application for an interim care order had to be made on notice to the mother.
  14. The District Judge was plainly troubled at this application and during the course of the morning declined to make an order. However, apparently either counsel renewed the application or the District Judge indicated to counsel that she had reconsidered her position, for in the afternoon she made the interim care order without notice, but only on the basis that immediate notice should be given to the mother and the matter relisted three days later on the 8th. On that occasion another District Judge transferred the case to the Family Division and said that it was to be heard by a judge of the Division with a time allowance of two days commencing on 18th March. But by 8th March the children had already been removed from their mother and placed with their father and his wife.
  15. On the 7th, the day preceding the inter partes hearing, a guardian ad litem had been appointed. The guardian was able to carry out visits, meeting both the mother and the children and the father, on 14th and 15th March. So he had made a substantial start on his investigations before the return on the 18th.
  16. Seemingly the lists were very full on the 18th, and the parties only found themselves before Mr Mostyn when the case that he had been listed to hear settled. They came into court in the middle morning and Mr Clough, for the local authority, told the judge what the case was about. Seemingly at a very early stage the judge expressed the view that this was essentially a private law case without any well-founded public law dimension.
  17. Seemingly at some stage during the first day something close to a consensus emerged at the Bar. Following discussion after lunch the judge was told that the local authority, the father and the guardian ad litem were agreed that the interim care order should go and should be renewed pending arrangements for a final hearing, the mother not dissenting. It seems that the judge was not happy to endorse such a disposal. Seemingly he reiterated his views that there was really no need for any local authority involvement and the case accordingly proceeded. He directed that the father should give his evidence first, because the judge defined or categorised the proceedings as contested cross-applications for residence orders. The father had at that stage filed only an affidavit which was effectively in support of an order restraining the mother from harassment, an application which would have had to have been issued under Part IV of the Family Law Act 1996. So, as Mr Shaw graphically described it, he found himself in the witness box giving evidence and being cross-examined upon an application for a residence order which he had never issued. Thereafter the judge heard from the mother, putting her in the same position, albeit of course a position that she no doubt more readily adopted.
  18. Somewhere on the second day he heard evidence from Mrs Biddy Youell, an extremely senior and experienced child psychotherapist at the Tavistock Clinic. There was no sitting on the next day because the case had only been allowed two days and one of the Bar had some other commitment, but the hearing resumed on the 21st. Again on the 21st it seems that, following discussion between the advocates, the same consensus was repeated and the judge was asked for a short adjournment, so that Mr Rice, who has represented the mother throughout, could take formal and final confirmatory instructions. However, the judge refused this adjournment, again because of his very strong view that that would not be an appropriate disposal and not appropriate because there was simply no public law dimension, or certainly not one to justify the grant of an interim care order.
  19. The evidence concluded on the 22nd and the judge was obliged to give an extempore judgment which I think he did not even commence until 5.00pm. Given the circumstances, the judgment that he delivered is characteristically full and lucid. That, of course, does not mean that it was necessarily sound.
  20. The attack upon it is led by Mr Clough for the local authority, who groups his various grounds of appeal under three headings. The first are complaints about procedure. Mr Clough reminds us of the decision of the court in the case of Re W (A Minor: Interim Care Order), the reference for which has been shorn from this photocopy. In that appeal Glidewell LJ specifically approved (at page 901D) the guidance which had been given by Cazalet J in the earlier case of Hampshire County Council v S [1993] 1 FLR 559. All the guidance is to be found in the headnote. Although the guidance is given in relation to an appeal from Family Proceedings Court, the decision in Re W shows that it is of equal application to proceedings in the other courts of first instance, namely the County Court and the Family Division. It is to the effect that the court should bear in mind that it is not required to make a final conclusion at an interim hearing. An interim order is simply there to establish a holding position pending final hearing. The court should be slow to make findings as to disputed facts at an interim hearing. The court should, when considering an order that might lead to substantial change, permit limited oral evidence, but restricted to the essential issues at an interim stage and the court should, if possible, have regard to the position of the guardian ad litem.
  21. Of course those are but generalisations and may have to yield to the demands of the individual case. This was in a sense an individual case, in that a strong order had been made without due notice to the mother. In order to redress that error the court had specifically allowed two days of High Court judge time to enable the mother to demonstrate that she should never have been separated from her children at that stage of their lives.
  22. It does seem that some confusion in the management of this case has arisen as a result of a failure to distinguish sufficiently between what might be termed the trigger event, namely the taped conversations of December 2001, and the underlying chronic threat to the well-being and development of the children presented by the mother's emotional and psychological disturbance. There is no doubt at all, as I will demonstrate later in this judgment, that that distinction was not sufficiently to the fore during the course of the trial that we review.
  23. Mr Clough's second procedural complaint is that the judge insisted on treating the proceedings as contested residence order applications when that was a categorisation adopted by none of the parties.
  24. The third complaint is of a somewhat technical nature, namely that at the end of the hearing the judge drew an order in paragraph 2 which purported to make a final supervision order, rather than the interim supervision order which would have been procedurally required.
  25. Perhaps equally technical are the complaints that Mr Clough makes of the conditions which the judge sought to attach to the residence order which he pronounced. For at the end of the case he decided that it was sufficiently exceptional to warrant a shared residence order to each of the parents. But such were his concerns as to the mother's tendency to lose emotional control, that he attached a whole string of conditions to the residence order to her which, Mr Clough says with force, manifestly exceed the quite strict bounds set on the court's ability to attach conditions under section 11 of the Children Act 1989.
  26. Lastly, he complains that one of the conditions, namely a condition that the local authority arrange psychotherapy for the older child, was ultra vires.
  27. Mr Clough's second attack is a very straightforward one. He says that the judge had the enormous advantage, not only of a written report from Mrs Youell but also of her oral evidence. Her oral evidence was of the clearest and was to the effect that it simply was not safe to return or to contemplate returning the children to the mother whilst she remained in such a state of disturbance. Mr Clough says that whilst the judge recited that evidence fairly and sufficiently, he simply gave no reasons for departing from it and he says that in that he fell into manifest error. He relies upon the decision of this court in the case of Re B [1996] 1 FLR 667.
  28. His third criticism of the judge is one which would obviously be reinforced by Miss La Cointe for the guardian, namely that the judge twice refused the guardian's requests to give oral evidence and then delivered a judgment which nowhere referred to the guardian, his investigations or his submissions.
  29. These submissions from the local authority are fully supported by Mr Shaw, for the father. He took us through various passages in the evidence of Mrs Youell, particularly in the transcripts. He emphasised that she had spoken of the mother's dangerousness. She had also said that there was no hope of success for W's psychotherapy so long as he was in the mother's home. She then clearly expressed the view that the mother had regressed since the date of the Munroe Centre report of June 2001, and she said in plain terms that if there had not been a father available to provide a home for the children, she would have been supporting a care plan for foster parent placement.
  30. Mr Shaw finally says that to make a shared residence order in this case was wildly inappropriate, given the long history of violent dispute between the parents and given the clearest findings made in previous judgments, particularly the judgment of His Honour Judge Tyrer, the value of which Mr Mostyn had expressly acknowledged at the outset of his judgment.
  31. Miss La Cointe for the guardian, as I would have anticipated, makes the simple but powerful point that on two occasions, namely on 18th March and again on the afternoon of 21st March, when the guardian saw the way the wind was blowing, he twice requested the opportunity to go into the witness box and to state his views. On both occasions the judge declined. Miss La Cointe adds that the absence of any written report from the guardian only strengthened the force of his desire to testify, and equally confined the ambit of the judge's discretion to refuse him that.
  32. Mr Rice, for the mother, has said everything that could possibly be said to try and support this judgment. He says that his client indeed desired and sought a residence order, albeit not shared, and was quite prepared to offer undertakings to the court. He did not accept that she had ever formally indicated that she would submit to an interim care order. He supported the judge's discretionary management of the case.
  33. I think these submissions can be disposed of relatively briefly. First of all, it is necessary to recognise the breadth of the discretion vested in the trial judge, particularly in the conduct of a difficult and unusual case such as this.
  34. Second, it is necessary to recognise that this judge had taken on a difficult case at short notice, without any opportunity to read into the case or to reflect upon it before its commencement.
  35. Then it is necessary to recognise the conscientious care with which he conducted the hearing, sitting well beyond the provisional time estimate.
  36. Finally, it is necessary to remember that this is an extempore judgment, given under pressure of time at the end of a long day.
  37. But all that said, it seems to me self-evident that the judge went off the rails at the very outset. How could he conceive -- I ask rhetorically -- that there was no proper public law dimension in the case, given the very clear terms in which the Munroe Centre had warned of the need for intervention unless the parents made significant change for the better? Of course he was entitled to take the position that the mother's telephone threats in December 2001 had been (as he described them) mere rhetoric. Perhaps they were mere melodrama. But what he should have perceived was that the chronic malady, the turbulent and histrionic manner in which the mother cared for her children and related to them, was plainly exposing them to the most serious risk of emotional abuse and distorted development.
  38. Of course a judge is entitled to take an independent line, particularly so when sitting in this jurisdiction and when considering issues of child protection and child welfare. But as a generalisation it is for the judge to support and encourage any communications between the parties, particularly when represented by experienced advocates, that might lead to a consent order. There is a particular value in orders achieved by consent rather than orders imposed by the court. For the judge not once but twice to frustrate the endeavour of the advocates to bring the proceedings to conclusion, and particularly to very early conclusion, by a consent order that was interim in effect and only designed to hold the ring until there could be a full trial, was in my judgment unfortunate.
  39. Mr Clough, in my opinion, is justified in all his complaints about procedure. All those criticisms are well made. They are not in themselves perhaps particularly significant, save that they do illustrate that the judge's endeavour to achieve the promotion of child welfare within the straitjacket of private law proceedings was unattainable. The very fact that he had to attach to the residence order this long string of conditions -- and conditions which are in part jurisdictionally impermissible -- shows that this was a situation which could only be managed safely by adopting the public law dimension and exercising public law powers.
  40. Equally, the judge's rejection of the expert evidence of Mrs Youell cannot be supported. The judge endeavoured it perhaps, and only inferentially, by saying after referring to her report -- and I quote two sentences, the first thus:
  41. "It was clear to me that her knowledge of and involvement with the mother was very limited."
  42. And then secondly:
  43. "I sensed that she felt the children were not safe from further emotional damage."
  44. As to the first sentence which apparently diminishes the force of the report, Mrs Youell had been responsible for W's psychotherapy since the previous autumn. Much more significantly, she had conducted a clinical interview with the mother on 15th March in company with Dr Pigott, who of course had been one of the three authors of the June 2001 report. Mrs Youell made it plain that her opinions expressed to the judge at trial were fully shared by Dr Pigott.
  45. Then for the judge to say that he sensed that she felt the children were not safe from further emotional damage is a seeming negation of the reality that Mrs Youell had been warning the judge in the clearest and most express language that the children would be at risk if returned to their mother.
  46. Mrs Youell's contribution to this case was, in my opinion, completely decisive. She was the only expert witness. Her evidence was not contradicted by any other. Nor was there any application for leave to introduce any other expert evidence. She was not just expressing an opinion as between various alternative placements, as to which might be better or which the less damaging, she was giving the judge expert evidence as to the mother's personality and as to her present state of emotional and psychological disturbance. I would go so far as to say that it was not open to the judge to reject that evidence. He was bound by it and his own impression of the mother or his reliance upon her good behaviour since the recording of undertakings on 8th March could simply not be set against it. Her evidence, in my opinion, effectively precluded the judge from refusing the interim care order, even if that had been his first impression of the case prior to Mrs Youell's testimony.
  47. Lastly, I reach the clear conclusion that the judge fell into plain error in refusing both applications, and particularly the second, from the guardian to go into the witness box. Of course the judge exercises a broad discretion in this area. But given the relevant facts and circumstances, an exercise of the discretion which led him to refuse the guardian the opportunity of giving evidence was in my opinion plainly wrong.
  48. Equally a judgment that makes no reference to even the existence of the court welfare officer is likely to be fundamentally flawed. Although the guardian had not been permitted to testify, he had been represented by his advocate, Mrs Little, who had made clear submissions on his behalf, warning the judge against the course that he was minded to take. He had at the least to record those submissions in his judgment and explain his reasons for rejecting them. That last flaw is of course mitigated by the fact that the judge was giving judgment under pressure and without the opportunity to reflect or make notes.
  49. I add these footnotes. The judge was extremely critical of the circumstances in which the local authority had separated these children from their mother and the means by which they had achieved that end. He said in the course of his judgment:
  50. "I am told this matter will be proceeding to the Court of Appeal which I hope will take the opportunity (whatever else they may think of my decision) of authoritatively arresting what I consider to be an abuse of the process of the court with no redeeming features. If it is allowed to stand as legitimate practice then one might as well apply a blue pencil to the entire Emergency Protection Order procedure set out in the Children Act."
  51. Plainly the judge was right to be critical of the impermissible steps taken by the local authority to gain control and to end the mother's lifelong care of the children. I do not in any way mean to validate these wrongful steps by saying in defence of District Judge Bowman that plainly she hesitated long, but was concerned by the possibility -- even if it were a small possibility -- that the children might be at risk of not just significant harm but death. Under those circumstances, it is understandable that she was misled into making the impermissible order, safeguarded by a return, on due notice to the mother, within three days.
  52. I suspect that the judge's sense of injustice to the mother led him into temptation to redress the wrong by returning the children to her care as soon as he could effect it. But the fundamental question was not whether the protective orders were procedurally flawed in their genesis, but whether they were required in reality. If they were, then in a sense the procedural flaws, however regrettable, were history and there was no opportunity to make redress without doing so at the expense of the children.
  53. I suspect, too, that the judge may have overinvested in the evidence of the mother's compliance with the undertakings given to District Judge Bowman. They were very recent and, as Mrs Youell duly warned the judge, might well merely mask continuing disturbance at a profounder level. The judge seems to have further rationalised his decision by finding that the children were desperately missing their mother, and an equal finding that they were being damaged and traumatised by the separation. As Mr Shaw, I think it was, pointed out, these findings were simply not open to the judge on the evidence not only of Mrs Youell, but also of the experienced social worker in the case as well as the evidence of the father.
  54. Of course there will be cases in which a judicial exoneration of a mother under wrongful attack is perfectly justified at the hearing of an application for an interim order. But this was simply not such a case. The judge had accepted the evidence of Miss Bulger as to the mother's quite exceptionally violently abusive behaviour, and he had found the section 31 threshold plainly crossed. There is no doubt at all that this judgment reflects an independent and courageous approach to a judicial responsibility. But in my opinion the judge would have been safer to have followed the consensus that was offered to him by the professionals in the case, both the legal professionals, the mental health professionals and the experts in social work, who all offered him a simpler path.
  55. Finally, having reached the conclusion that the judge was plainly wrong to have refused an interim care order, an order which was capable of routine renewal without extensive judicial reconsideration (a feature of interim care orders that the judge does not seem to have fully understood), there remains the problem of what should be the order for contact that accompanies it. This is the one area in which the judge has the responsibility and the power to impose some control upon a local authority, whose application for a public law order he grants. I have no doubt at all that if Mr Mostyn had made the interim care order, he would undoubtedly have made an order to the mother for generous contact. But that is not the question. The question is: what order should we make? We have to recognise that there have been very substantial developments in the interim, developments which have only emerged piecemeal during this hearing. But with do know now that on 10th April the mother, in reaction to the grant of permission and the stay ordered by Ward LJ on 27th March, issued an application for permission to disclose the papers to an adult consultant psychiatrist and, on 25th April, applied for a defined contact order. There was a hearing before Black J on 17th May, when she gave various directions and granted the permission sought. There was then on 20th June a hearing at risk of the application for defined contact. The case was not reached and there is another hearing at risk on 26th July. Today's inquiry of the Clerk of the Rules suggests that the chance of any listing next week is extremely remote.
  56. However, we do now know that this case will be fixed before Coleridge J on 23rd September with four days allowed. We also know that the local authority have commissioned a further report from the Munroe Centre, which is likely to be available on or about 7th August. In those circumstances, since we have not been shown any of the voluminous evidence which has been prepared in support of and in opposition to the mother's application for a defined contact order, the exercise of our discretion must be extremely limited.
  57. We have been shown a contact schedule which the local authority have drawn, which reassuringly extends the mother's future contact from the present position of three 1½-hour visits a week supervised, to at least all-day outings to the sort of places that children can enjoy. That new regime will start with an all-day visit Wednesday next to Legoland.
  58. What we have considered -- and it is really the only area in which we have any material that would justify our consideration -- is whether a possible venue for supervised contact should include or exclude the mother's home, virtually the only home the children have known. One of the fortuitous factors is that the mother's tenancy of that home is to expire on 7th September, i.e. before Coleridge J can get a grip of this case. The local authority say that there should be no supervised contact there in the interim, and they take that position because they say that is the advice they have received from the Munroe Centre. The guardian says that plainly the children should be allowed to see their mother at home, with supervision, so that the home does not disappear without them understanding its loss. That seems to be partially accepted by the local authority. Perhaps I should go no further than saying that I think it is extremely important than these children should be allowed to see their mother again in the familiar setting of their home before the expiration of the tenancy. On the other hand, we have not heard the views of the Munroe Centre, and perhaps it is safer to say that I would hope that the parties would work towards agreeing at least one visit, and preferably more, subject to what emerges in the Munroe Centre report when it becomes available to the parties on or before 7th August.
  59. So the only order that I would propose would be to allow the appeal and to substitute for the long and complicated order made by Mr Mostyn the order that the local authority sought, namely the interim care order.
  60. LORD JUSTICE BUXTON: I agree. Since we are differing from the judge I venture to add one, short, observation.
  61. In his judgment the judge set out a substantial account of the evidence of Mrs Youell, and he then said this by way of comment (at page 35E of his judgment):
  62. "She was clear, to me at least, that she did not think it was safe currently for [W] or [O] to return to their mother. She said that she would have supported a placement with foster parents if the father was not available. She said that the mother does not have insight into her actions; she has good intentions but no insight. She said her conduct has a very damaging effect on the children."
  63. It might have been thought that from that summary of the evidence, the standing of which my Lord has set out, a very clear conclusion would follow. But the judge continued in these terms:
  64. "It to is to be recalled, however, what the reason was that the application was made to take the children into care. This is best discerned from the application for the Interim Care Order itself, which states
    `The local authority has become increasingly concerned by the mother's frequent erratic outbursts of abusive and threatening behaviour. She has recently threatened to harm the children if their names remain on the Child Protection Register. It appears that the mother's mental health is becoming increasing unstable. There are long-standing concerns with regard to the effect of the parent's conflict on the children's emotional development'."
  65. The judge interpreted that -- or appears to have done -- as an application that was based solely on fear that physical injury would be inflicted upon the children by the mother. He went on to say that everybody concerned in the case had accepted that those threats that were made were not in fact made genuinely or seriously. He seems to have concluded from that, and from the fact that more vigorous intervention had not taken place earlier, that the original fear had been of physical harm and that that fear was not made out.
  66. But that was not the basis upon which the application was made before him. That basis did not even follow from the account of the terms of the application that he set out in his judgment. And it certainly did not follow from the document setting out the local authority's case that was placed before him at the hearing. That said this:
  67. "Throughout their involvement with the family the local authority's main concern has been the impact of the parent's acrimonious relationship upon the emotional welfare of O and W ..."
  68. It is then made clear that the placement on the child protection register was under the category of emotional abuse, and the case continued in these terms:
  69. "The Munroe Young Family Centre concluded that both children were suffering significant harm as a result of the way in which their parents behaved and that their emotional development was being impaired and was likely to be further significantly impaired if the situation remained unchanged."
  70. It should therefore have been entirely clear that the local authority's concern, and Mrs Youell's concern, was as to the emotional impact on these children of the behaviour of their parents, and more particularly of their mother.
  71. The judge in a judgment which, as my Lord has said, was delivered under extremely unfavourable circumstances, appears simply to have lost sight of that point, with the result that he never focused on the evidence given by Mrs Youell and the significance of it for the actual issue in the case. Whether for that reason or for any other, the outcome was that the most important evidence in the case has never really been addressed by the judge.
  72. For that reason, and also for the reasons given by my Lord, I am driven to the conclusion that the judge reached a conclusion that was plainly wrong and which was not open to him on the clear evidence that was before him.
  73. For that reason, and in addition for the reasons given by my Lord with which I entirely agree, I would concur in the order that he proposes.
  74. I would only add this. It was most unfortunate that in the preparation of this appeal the extensive and elaborate series of events that have occurred between Mr Mostyn making his order and the hearing of this appeal today was never revealed to us in the papers, or indeed in the way in which the appeal was opened, and only emerged ambulando in the course of the hearing. Speaking for myself, had the court had any indication at all of what had happened it would have been easier to take a global view of the case, including a view of the order that we should properly make now, than it was on the basis upon which the appeal was in fact presented.
  75. MR JUSTICE FERRIS: I agree with both judgments and do not wish to add anything.
  76. ORDER: Appeal allowed; no order for costs save detailed assessment of the Community Legal Services Funding Certificates.
    (Order not part of approved judgment)

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