B1/00/3161
Neutral Citation Number: [2001] EWCA Civ 59
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NORTHAMPTON COUNTY COURT
(His Honour Judge Hall)

Royal Courts of Justice
                                    Strand
                                    London WC2
 
                          Wednesday, 17th January 2001

B e f o r e :

LORD JUSTICE THORPE

MR. JUSTICE PENRY‑DAVEY
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C (A CHILD)

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 (Computer Aided Transcript of the Stenograph Notes of Smith Bernal Reporting Limited 190 Fleet Street, London EC4A 2AG
Telephone No: 0171‑421 4040
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Official Shorthand Writers to the Court)
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MR. M. ROBINSON (instructed by Messrs Lamb and Holmes, Kettering, Northamptonshire) appeared on behalf of the Applicant.

MISS K. BRANIGAN (instructed by The Andrew Isaacs Practice, Bournemouth) appeared on behalf of the Respondent.

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J U D G M E N T
1.	LORD JUSTICE THORPE: On 1st December His Honour Judge Julian Hall, sitting in the Northampton County Court, had to decide a difficult case as to the future of a boy, D, who had reached the age of 9 on 14th December. The past pattern was one of shifting between mother and father. He had come into mother’s care in Northamptonshire in February, and there was an obvious perceived danger that this little boy was manipulating the situation by taking his own decisions as to which parent he wanted to live with and effectively implementing that decision by disturbed and difficult behaviour. That possibility was clearly identified by the court welfare officer and emphasised to the judge. The judge was critical of both parents, each of whom he felt had at various points in the past put their own needs and interests before that of D.
2.	The judge had, in addition to the recommendation of the court welfare officer in her written report, a report from the head teacher at the Northamptonshire school. She essentially took the same professional view as the court welfare officer. She was inclined to think that the explanation for the recent disturbed behaviour in the mother’s household was the disruption caused by long  telephone conversations with the father in the Bournemouth area. The judge adopted a somewhat unusual means of conducting proceedings, which were tailored to the difficulties that the case presented. He heard both the parents in‑chief. He then heard the court welfare officer, and only after she had left the court did he hear the cross‑examination of the parties. In his judgment he defines what was for him the essential discretionary choice. He said:
“If they are pandered to by, as it is seen by the court welfare officer, by making an order to go and live with his father, would he become even more selfish and unmanageable or would he, if he was looked after by his father on his own, attending a school he was familiar with up to as recently as February, respond to that change and settle down?
Miss Branigan, on behalf of father, says that it is a risk. Mrs Pinkham says, in a sense gleefully seizing on the forensic concession, ‘Yes, it is a risk that you should not take’. It is a risk. It has to be balanced against the risk of further deterioration which has happened in his behaviour even since the compilation of the court welfare’s report.”
3.	He went on to express his judgment that the mother was currently failing D. He concluded that D’s life would be much more ordered and regular were he to be returned to his father.
4.	Mr. Robinson, who has argued this application on behalf of the mother, has criticised the judge for rejecting  the assessment of D’s head teacher. That is an argument that it is hard to pursue in the light of the judge’s express conclusion (page 7 of his judgment) that he could not accept her very direct analysis of cause and effect; that is to say, the effect of disturbed behaviour caused by the father’s telephone calls. He said that he could not accept this analysis.
5.	As Mr. Robinson has conceded, this application has but one foundation. It is that the judge has not expressly explained his reasons for departing from the court welfare officer’s report. Miss Branigan, in meeting that point in her skeleton argument, refers to the judgment of Russell LJ in the case of Re V (Residence:  Review) [1995] 2 FLR 1010, in which at page 1119 Russell LJ said that it was not essential for the judge to spell out precisely the basis of his rejection of the court welfare officer’s view, provided that he had made plain from the judgment as a whole why it was that the recommendations were not being accepted. The question really is:  Does this judgment, read as a whole, by necessary inference disclose the reasons for the judge’s departure?  I am in no doubt at all that there is sufficient within the judgment to satisfy any reader that the judge had the court welfare officer’s  recommendations in the forefront of his mind throughout the judgment, and the reasons for his rejection of the recommendation are implicit from the way he defines the balancing exercise towards the end of his judgment and by the way in which he explains his preferred choice. Of course, it might be said that for perfection that would not be a matter of inference but would have been expressly and clearly stated. But this is an extempore judgment by a very experienced circuit judge, who had before him a difficult case in which the outcome was finely balanced. There would be very little gain to either parent or to the child were this court to set aside the judge’s approach and conclusion, with the only consequence that a retrial would be ordered. We have been told by Miss Branigan that, during the period of contact agreed between the 3rd and 7th January, D was complaining of an injury which he said had been inflicted on him by his mother. He was seen by a local GP who confirmed his complaint. We have also been told that, at the conclusion of the period of access, it proved quite impossible to prevail on D to return to Northamptonshire. Accordingly, his mother has sensibly accepted the reality that he is currently unmanageable in her sole care. He has been returned to the Bournemouth school he left last February, and I cannot  conceive that any advantage would be done to anybody by re‑opening the litigation in the county court. There is a finality within the aftermath that fully supports the judicial conclusion. For all those reasons I would refuse this application for permission.
6.	MR. JUSTICE PENRY‑DAVEY: I agree.
Order:  Application refused;  public funding assessment of both parties’ costs.