Case No: B4/2012/0029

Neutral Citation Number: [2012] EWCA Civ 1281
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY 
FAMILY DIVISION
(MR RECORDER SAPSFORD QC)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 25th July 2012

Before:

LORD JUSTICE THORPE
LORD JUSTICE HALLETT
- and - 
LORD JUSTICE McFARLANE
- - - - - - - - - - - - - - - - - - - - -

	In the Matter of
C (A Child)
		
- - - - - - - - - - - - - - - - - - - - -

(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

- - - - - - - - - - - - - - - - - - - - -

Mr Andrew Powell (instructed by London Borough of Lambeth) appeared on behalf of the Appellant local authority.

Mr Jagutpal (instructed by Maskesys Solicitors) appeared on behalf of the Respondent father.

The First Respondent mother and Third Respondent child did not appear and were not represented.

- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Thorpe: 

1.	This local authority’s appeal against the order of Mr Recorder Sapsford QC attacks one paragraph, namely paragraph 3, which states:
“Pursuant to s26 of the Adoption and Children Act 2002, indirect contact afforded to the Father shall include a small photograph (no bigger than 7.5cm x 7.5 cm) of [S] to the Father on an annual basis.”
2.	When the appeal was before the court on 13 June, Mr Powell for the local authority demonstrated that the order had been sought and opposed at the submission stage, that it had not been dealt with by the learned Recorder in his judgment but emerged in the exchanges post-judgment when he was reminded on behalf of the father that the application was live and still had to be dealt with.  He then summarily immediately granted the application without hearing response from the local authority and without reasoning his conclusion.  Accordingly, we adjourned the appeal with a request to the Recorder to read back into the papers and then to deliver an addendum judgment which would explain his discretionary decision to grant the application for an annual photograph.  
3.	This could be said to be a very small issue, one passport-sized photograph once a year.  On the other hand, there is a great deal of background, unnecessary to record in this judgment, which suggests that this seemingly innocuous provision pays scant regard to the interests and rights of the child whose welfare after all has to be paramount in the exercise of these discretionary decisions, and furthermore to ignore the preponderance of the evidence which was against the initiation of this requirement.  The social worker and the guardian had been against, and the expert evidence from the Maudsley Hospital was to the effect generally that indirect contact between father and child should be in consultation with, and impliedly subject to, the approval of the child’s therapist.
4.	The reasoning which emerged from the learned Recorder has four paragraphs and was made available to the parties on 4 December.  In the first paragraph he makes the valid point that S retains a close connection with the paternal family, both grandparents and aunts, and regularly stays with them at weekends and has her holidays with them.  In his second paragraph the judge expresses his reliance on evidence that the father was a living presence in the mind of the child and that she would inevitably think about him and wonder how he was.  In his third paragraph the judge relies upon the expert psychological evidence and assessments which he says lead to the conclusion that it was undisputed that indirect communication between father and S would assist the professionals in future therapy.
5.	Mr Powell particularly attacks paragraph 3 which he says is contrary to the evidence that any indirect contact had to be in consultation with the therapist.  It was not to be put in place in preparation for therapy or to assist therapy.  That was a complete distortion of the evidence.  
6.	Mr Jagutpal for the father has endeavoured skilfully to support the order below and to commend the reasoning of the Recorder.  He correctly says that the Recorder was exercising a discretion and that he had well in mind the totality of the evidence.  However, the argument avails not because it is demonstrated that the judge has not correctly either remembered or understood the evidence and accordingly his conclusion rests on the shakiest of foundations.  As my Lord, McFarlane LJ has observed, there seems to have been an inadequate consideration of the child’s position in all of this.  Does it not amount to a violation of the rights of the child that without any benefit to her, without any need in her, she is the participant in a process which, as my Lady has observed, may be impossible for her to understand in years to come as she acquires understanding of her past and of the sort of father that she has?  
7.	So on this issue I am in no doubt at all that Mr Powell succeeds in his submissions and the order below is either insufficiently or erroneously reasoned and I would simply set it aside.
Lady Justice Hallett:
8.	I agree.
Lord Justice McFarlane:
9.	I also agree.
Order: Appeal allowed