Court of Appeal orders fresh hearing after local authority appeals rejection of application for care order

The Court of Appeal has allowed a local authority’s appeal against a judge’s decision to reject its application that a young person should be made subject to a care order.

In EY (Fact-Finding Hearing) [2023] EWCA Civ 1241, Lord Justice Baker concluded that the judge “fell into error” in the treatment of an expert’s report, and that there were “substantial flaws” in the judge's evaluation, in particular his disregard of some of the findings as "historic".

The care proceedings concern a young person now aged 14, referred to as "E". E was born a girl but now identifies as non-binary. E’s preferred pronouns are they / them.

The appellant local authority applied for E to be subject to a care order, which was dismissed in August 2023 after the judge found the threshold criteria for making orders under s.31(2) of the Children Act 1989 were not satisfied.

The local authority filed a notice of appeal against this decision, which was granted permission by King LJ on 16 August. The Court of Appeal judge noted that the local authority's appeal was supported by E's mother and by the children's guardian, but opposed by E's father.

Outlining the background to the case, Lord Justice Baker noted that E and their family had had a long involvement with social services dating back to before E's birth, “arising initially because of concerns about the mother's mental health and parenting skills” [in regard to E’s older sister, S].

The parents separated shortly before E was born, with S remaining in the care of her mother and having contact with her father.

In 2009, when E was a few months old, an allegation was made that S had been sexually abused by her father. He was arrested and a s.47 investigation was undertaken. Professionals became concerned that S's allegations had been prompted by her mother and the police inquiry concluded with no further action, the judge noted.

The children were placed under a child protection plan under the category of neglect. A few weeks later, S moved to live with her father, followed later in the year by E.

In the following years, there were “several referrals to children's services arising out of concerns that they were being neglected”, said Lord Justice Baker.

In December 2017, the children were placed under a child protection plan under the category of sexual abuse after further concerns were expressed – including that that the children had shared a bed with another older male, had observed adults having sex in the home, and had been permitted to spend the night with their boyfriends.

The judge noted that following further work with the family, the plan was stepped down to a ‘Child in Need’ plan and in June 2019 the local authority closed the case.

In 2022, there were a series of referrals including “a number about sexualised statements made by E”, said the judge.

In June 2022, the local authority convened an Initial Child Protection Conference which decided that S and E should again be made subject to a child protection plan under the category of sexual abuse.

The father was arrested on suspicion of sexual activity with a child and released under investigation with bail conditions to have no contact with S or E unless agreed by children's services.

On 7 August 2022, the local authority filed an application for care orders.

At the first case management hearing on 6 September, E was made subject to an interim care order. At a further case management hearing on 17 October before HH Judge McPhee, the parties applied for and were granted permission to instruct a clinical psychologist, Dr Omar Timberlake, to provide a global family psychological assessment of E and their father.

The final hearing took place before HH Judge Richard Clarke. The Court of Appeal judge noted that at the hearing only three witnesses gave oral evidence - the current social worker allocated to the family, the father, and the children's guardian. On 10 August 2023, the final judgment was handed down dismissing the proceedings.

The Court of Appeal judge noted that a “central issue in the appeal involves the judge's treatment of Dr Timberlake's report”.

Asked whether the father has the capacity to provide for E's care and welfare needs throughout their minority, Dr Timberlake said:

“I am of the view that should E be returned to [their father's] care, they would be at further risk of harm and not have their full needs met. [The father] has struggled with providing appropriate boundaries in the family home, this has resulted in E being exposed to harm.

“This includes witnessing inappropriate adult material, adult sexual behaviour, E engaging in alcohol use, and a lack of parental supervision resulting in unsafe time in the community at late hours. E has been subject to physical chastisement and has experienced an unpredictable caregiver that results in physical harm.”

The Court of Appeal judge set out a long summary of Dr Timberlake’s report and findings before outlining the August 2023 judgment under appeal.

On the judgment, Lord Justice Baker said: “The judge started by summarising the family history, the issues, the parties' positions and the applicable legal principles.

“The judge then turned to the evidence, saying that the fact that he did not mention something in his decision did not mean that it had not been fully considered. He identified a number of sources of written evidence and expert reports.”

These included: a statement from a worker at E's youth club, a statement from the pastoral head of year and safeguarding lead at E's school, two statements from the father, (in which he denied harming the children or exposing them to the risk of sexual harm), a statement from the current allocated social worker, DL, a parenting assessment carried out by DL, a cognitive assessment of the father which concluded that he had no cognitive difficulties, Dr Timberlake's reports and the guardian's initial and final analyses.

The Court of Appeal judge noted that the judge pointed out allegations which had been included in the first version of the threshold document but omitted from the final version, including that the children had witnessed grooming of young girls in the house and that the father had allowed adult male friends to share a bed with them.

Later, the Court of Appeal judge said that at paragraphs 96-7, the judge criticised Dr Timberlake in these terms:

"The opinion of Dr Timberlake was based on the evidence the local authority was putting forward. In his report he accepted father had spent money on S's friends. He accepted E had been the subject of physical chastisement. He accepted there had been a lack of boundaries and parental supervision in E's life. The court would have been better assisted by Dr Timberlake setting out any psychological issues E has and providing information on possible causes.

“The court takes into account, as part of the overall canvas, the psychological issues identified by Dr Timberlake in respect of father. However, whether father has been open and honest and lacks insight is dependent on the local authority proving the background facts."

The Court of Appeal judge added: “The judge recited the occasions between 2018 and January 2022 when the local authority had carried out assessments following referrals and concluded either that the claims were unsubstantiated or that the circumstances did not warrant further involvement.”

Concluding the final hearing, HH Judge Richard Clarke said:

“Having made the findings it does the court must then turn to consider whether threshold is made out under s31 of the Children Act 1989. The court is not applying a standard of perfect parenting.

“Just because E accessed porn and father's sex tape in the past does not mean it will happen again or that a child being curious about such matters is inappropriate. E accepted behaviour issues in the home and there was evidence shouting was not limited to father, although his actions may have set the example for the children. It is clear E is a troubled child with identity and relationship issues. Any findings must be linked to significant harm, otherwise threshold is not made out. Dr Timberlake failed to prove that link. The local authority suggest the court should accept the logic leap without further, but given the limited nature of the findings made the court is unable to make that leap.”

Turning to the present appeal, Lord Justice Baker noted that the local authority initially relied on seven grounds of appeal:

1. The judge fell into error by misconstruing the unchallenged report of Dr Timberlake, and thereby failed to give it sufficient weight in consideration of threshold.

2. In considering whether the respondent father failed to protect E from witnessing inappropriate sexual behaviour and having access to pornography, the judge fell into error by failing to evaluate the facts as pleaded as a whole and in the round as to whether or not E had suffered significant emotional harm.

3. In considering whether the father had hit E in Asda, the judge fell into error by failing to take into consideration the inconsistent accounts as provided by the respondent father, as well as what both E and S had said to professionals, in particular to Dr Timberlake and the guardian.

4. In considering whether E suffered significant emotional harm as a result of the father shouting and swearing at them, the judge failed to take into account the hearsay evidence of E and S in its entirety.

5. In considering whether E suffered significant emotional harm due to the father never being affectionate with them, the judge failed to take into account the hearsay evidence of E and S in its entirety, as well as the evidence of the father in his police interview, who informed the police that he had not touched either child since he was accused of sexually assaulting S, save for the odd cuddle.

6. The judge fell into error by indicating that the court could have made findings beyond threshold as pleaded, yet did not identify what they may have been.

7. The judge fell into error by minimising the hearsay evidence of S and E when no party required either of them to give live evidence.

After the grant of permission to appeal the local authority added two further grounds:

8. The judge fell into error by not considering the evidence in its entirety, including the hearsay evidence of E and S, in finding that threshold was not met in relation to the father's alleged excessive preoccupation of gaming on his computer.

9. The judge fell into error in failing to consider the context within which E said "I just want to be adopted".

The Court of Appeal judge focussed his attention on grounds 1, 2 and 6.

Outlining the parties’ submissions on Ground 1 (the judge's treatment of Dr Timberlake's evidence), Lord Justice Baker said that on behalf of the local authority, it was submitted, first, that as Dr Timberlake was not required to give evidence, the views expressed in his report were therefore unchallenged.

Secondly, it was submitted that, given Dr Timberlake had interviewed E, S, the father and the foster carers, the judge had “erred in concluding that his opinion was based simply on the local authority proving the factual matters alleged in the threshold document”.

Thirdly, it was submitted that the judge “erred in concluding that Dr Timberlake had failed to establish a link between the findings and significant harm”.

On behalf of the children's guardian supporting the appeal, it was submitted that the judge misunderstood the scope of Dr Timberlake's instructions. The terms of Dr Timberlake's assessment, which were agreed by the parties and approved by the court at an earlier case management hearing, went beyond simply providing a psychological opinion of the father and E.

On behalf of the father, it was submitted, first, that the report was not unchallenged. Although Dr Timberlake had not been called for cross-examination, his assessment had been challenged in closing submissions on the basis that he had incorrectly assumed that the local authority's concerns were all true.

Under ground two, the local authority contended that, in considering whether the respondent father failed to protect E from witnessing inappropriate sexual behaviour and having access to pornography, “the judge fell into error by failing to evaluate the facts as pleaded as a whole and in the round as to whether or not E had suffered significant emotional harm”, Lord Justice Baker said.

Under ground 6, the local authority submitted that the judge, having acknowledged that it was open to the court to make findings beyond those sought by the local authority, erred by declining to identify what those findings could have been.

Discussing the first ground, the Court of Appeal judge noted that “whatever may be the obligations on a party who seeks to challenge the conclusions of an expert, the judge is not obliged to accept those conclusions.

“The judge was not obliged to accept Dr Timberlake's evidence simply on the basis that he had not been required to attend for cross-examination. On the contrary, he was obliged to evaluate Dr Timberlake's opinion in the context of the totality of the evidence. This aspect of the first ground of appeal therefore fails.”

He added, however, that the local authority was on “much stronger ground” in its challenge to the way in which the judge carried out that evaluation and his reasons for rejecting the expert's opinion.

Lord Justice Baker concluded that the judge “fell into error in his treatment of Dr Timberlake's report”, allowing the appeal on ground 1. This was in the following respects:

1. The judge misunderstood the scope of Dr Timberlake's instruction. The Court of Appeal judge was satisfied that Dr Timberlake did no more than answer the questions agreed by the parties and approved by the court.
2. It followed on from those wide-ranging instructions that Dr Timberlake would be required to carry out an investigation which would include inquiries relevant to the court's fact-finding exercise. Consequently, it was wrong of the judge to criticise Dr Timberlake by observing that "it is not the role of the expert to investigate or provide evidence on disputed facts".
3. It was plain from the report that Dr Timberlake was basing his observations and recommendations not only on information in the papers provided to him but also – “and in my view substantially” – on his own interviews with the father, S and E. Insofar as the judge was saying that the expert's opinion was based solely on the local authority’s evidence, he was mistaken. “Furthermore, in limiting the weight he attached to Dr Timberlake's report on the grounds that it was based on the evidence that the local authority was putting forward, the judge seems to have overlooked that to a significant extent he himself was accepting that evidence.”
4. Whilst saying that he took into account Dr Timberlake's assessment of the father's psychological issues, the judge seemingly attached little if any weight to that assessment on the grounds that 'whether father has been open and honest and lacks insight is dependent on the local authority proving the background facts'. "Again, it should be noted that the judge ultimately found that in many respects the local authority had proved those facts."
5. Lord Justice Baker was concerned about the judge's conclusion that Dr Timberlake had failed to prove a link between the findings of fact and a finding of significant harm necessary for the threshold under s.31(2) to be crossed. “As set out above….Dr Timberlake had carefully explained why he thought the link was established.”
6. The Court of Appeal judge did not understand the basis of the judge's criticism of Dr Timberlake to the effect that the court “would have been better assisted by Dr Timberlake setting out any psychological issues E has and providing information on possible causes"). “This seems to me to be wrong for several reasons. First, as I read the report, Dr Timberlake did address E's psychological issues and the possible causes thereof. Secondly, insofar as he went beyond those issues, he was responding faithfully and professionally to the questions in the letter of instructions which had been approved by the court. He did not exceed the scope of his instructions. Thirdly, his wider observations in response to those questions were insightful and plainly relevant to the judge's analysis and decisions.”

Turning to ground 2, Lord Justice Baker said: “It is conclusively established in case law that a finding that a child is suffering significant harm must be based on facts found on a balance of probabilities.

“The judge concluded that, because the local authority had abandoned some of the allegations of inappropriate conduct and were not seeking to prove the truth of some of the things which the children had said or implied had happened, there was no 'pattern' on which the authority could rely to establish that the threshold was crossed”.

The Court of Appeal added however: “The local authority was entitled to rely on 'historic' matters alongside more recent matters in seeking to establish a 'pattern' which proved that the child was suffering and/or likely to suffer significant harm as a result of the care given and/or likely to be given to them not being what it would be reasonable to expect a parent to give to them”.

Allowing the appeal on ground two, Lord Justice Baker said: “There were substantial flaws in the judge's evaluation, in particular his disregard of some of the findings as 'historic"' and his failure to evaluate the findings in the context of Dr Timberlake's analysis and conclusions.

"[…] I conclude that this case falls within the category of appeals where this Court is compelled to interfere with a judge's evaluation of the evidence.”

Finally, discussing ground 6, the Court of Appeal judge said: “Usually, when this Court is asked to consider whether a judge has gone 'off piste' when making findings in care proceedings, it is because he or she has made findings which the appellant says were made unfairly or were unsupported by the evidence or fell outside the "known parameters" of the case.

“Here, however, the local authority submitted that the judge erred in failing to identify findings which were not included in the threshold document but were supported by the evidence.”

He added: “It may be possible to discern findings which, although not sought by the local authority, could have been sought because they fell within the 'known parameters' of the case. But I agree with [counsel for the father's] observation that it is very hard to see how a judge can be criticised for failing to make findings which he was never asked to make and which have still not been particularised by the local authority even on appeal. The argument that an appeal should be allowed because the judge failed to make such findings is, to my mind, hopeless.”

He dismissed ground 6.

However, allowing the appeal on grounds 1 and 2, Lord Justice Baker concluded that there would have to be a retrial of the fact-finding hearing, at which the next judge would “consider the evidence afresh”.

Lady Justice Falk and Lord Justice Coulson agreed.

Lottie Winson