Father fails in appeal in childcare case over subsequent diagnosis of autism

The Court of Appeal has rejected a father’s appeal against care and placement orders made in respect of his daughter, finding that while his subsequent diagnosis of autistic spectrum disorder (ASD) may have had a “bearing” on some of the risks identified in the case, the majority and the most serious identified risks were not linked to ASD.

In T (Fresh Evidence on Appeal) [2024] EWCA Civ 1384, Lord Justice Baker concluded there was no basis for the appellant’s second ground of appeal and no merit in the first ground.

The Court of Appeal judge said the father had applied for permission to appeal against care and placement orders made in respect of his daughter, T, who is now 20 months old.

The basis of the application was that, since the hearing before the lower court, he had been given a diagnosis of autistic spectrum disorder (ASD).

He asserted that, as the court was unaware of the diagnosis, the orders were unjust because of a “serious procedural irregularity”.

Baker LJ noted that T's parents both had difficult personal backgrounds. The mother was abused as a child and has a history of alcohol abuse. The father has a longstanding problem with alcohol and a number of criminal convictions.

After the mother became pregnant with T, the parents said that they did not wish to keep the baby and no other family member came forward to care for the child.

After T was born, she was accommodated by the local authority under s.20 of the Children Act 1989. However, the parents changed their minds and asked to be assessed as carers.

At a case management hearing in May 2023, the court made an interim care order on the basis of a plan for a residential assessment of the parents and baby. Thereafter, the family moved into a residential unit (the A Centre) for 14 weeks.

The final report from the A Centre recommended that T should not remain in her parents' care.

Baker LJ said: “The mother was found to be unable to meet T's needs as a sole carer. Although the father was seen as being able to meet T's care needs and offer stimulation ‘when he wants to’, he was also described as offering little or no support to the mother, exhibiting controlling behaviour towards her, failing to engage openly and honestly with professional staff, and not listening to advice.”

Despite the negative outcome, the local authority agreed to a further residential assessment at a different unit (the B Centre), with the father to be assessed as the primary carer.

However, a final report from the B Centre concluded that the father did not have the ability to care for T without long-term, fulltime oversight support. If T remained in the father's care, she would be "at risk of significant neglect".

At the conclusion of the assessment, T was placed in foster care. The local authority agency decision maker concluded that T should be placed for adoption and the local authority filed an application for a placement order.

The final hearing of the care and placement order applications took place in April 2024.

The recorder found that the father had "told wholesale lies about important aspects of his life", including his care of T. She found he had been unable to demonstrate in the assessment centres that he could meet the child's needs on a consistent basis.

Having identified the advantages and disadvantages of adoption, the recorder concluded that it was the only option which would meet T's needs and that her welfare required her to dispense with the parents' consent to the making of a placement order.

The father filed a notice of appeal against the care and placement orders. He put forward two grounds of appeal.

Under the first ground, he argued that the judge had placed “undue weight” on the recommendations of the second residential assessment without considering what took place at the assessment centre.

The second ground was expressed in the following terms:

"It was suggested by the intermediary supporting the mother during the lengthy final hearing, that in her professional opinion, I was presenting with what may have been traits of an Autistic Spectrum Disorder. This was not something that had been raised previously and I do not yet have a diagnosis of this nature. Following this being raised I have now sought the assistance of my GP in making a referral for an assessment in respect of this to ensure that I am properly supported moving forward. If indeed, I do need additional support which was not available to me during the course of these proceedings and this 5 day final hearing, I would also suggest that this raises the issue of procedural irregularity and unfairness to the extent that it renders the decision unjust."

The father was assessed by Ms D, a CBT psychotherapist, who subsequently prepared a report on the assessment.

In her report, Ms D concluded that the father met the criteria for a diagnosis of ASD "with Level One needs", indicating that he required "support, with a particular emphasis on various aspects of executive function".

Counsel for the father submitted that the application to admit Ms D's report satisfied the test under CPR 52.11(2), including the three criteria in Ladd v Marshall. It was argued that the evidence “could not have been obtained with reasonable diligence” at trial.

Counsel for the local authority submitted that the Court of Appeal should decline to admit Ms D's report, in particular because it would not have an important influence on the outcome of the proceedings.

This position was supported by counsel for the children's guardian, who also argued that the report was not reliable.

Considering the submissions, Baker LJ said: “In this case, the recorder's decision was based in part on the outcome of the assessments carried out at the A and B Centres. If the father had been diagnosed beforehand as having ASD, those assessments would have been crafted to take into account difficulties he might have in understanding, social communication, participation, and executive function.

“On behalf of the local authority, Ms MacLynn pointed out that the way in which both residential assessment units were set up was entirely based on routine with a view to supporting and assessing the father's parenting capacity. She submitted that, even though the assessors at the units were not aware of the father's diagnosis, the work they were doing with him - working to a routine, providing support on a 24/7 basis, assisting with tools such as whiteboards and other technology to support the routine – was all in line with the type of support which would be provided had they been aware of the diagnosis.

“There is some force in that submission, but Mr Rowley [for the father] is right to say that, had a diagnosis of ASD been made before the assessments, they would have been structured and tailored with the diagnosis in mind, focusing on the specific type of support required by a parent with the disorder.”

Baker LJ observed that in some cases, a failure to identify cognitive difficulties before a parenting assessment or to make appropriate directions to facilitate the giving of evidence will amount to a “serious procedural irregularity” – for example in Re S (Vulnerable Party: Fairness of Proceedings) [2022] EWCA Civ 8.

He continued: “In giving the judgment of the Court allowing the appeal in that case, however, I observed that not every failure to comply with the provisions about the evidence of vulnerable persons will amount to a serious procedural irregularity so as to render the decision unjust, noting (at paragraph 44):

"In some cases, there will be other evidence supporting the findings so that a flawed assessment of a witness's evidence will not warrant any interference with the decision."

“In my view, this is just such a case. The recorder made a number of significant findings based on evidence which are not materially compromised by the fact that the court was unaware of the possible diagnosis.”

He listed the following examples:

1. There was extensive evidence to support the finding that the father had "told wholesale lies about important aspects of his life".
2. There was clear evidence to support the findings that the father's relationship with the mother posed a risk to T, that there was a "lack of emotional warmth between them", and that the father had been "domineering and manipulative" towards the mother.
3. The recorder's finding about the father's drinking.
4. The evidence from both the A Centre and B Centre assessments, accepted by the recorder, that the father had initially been able to assimilate and demonstrate knowledge about providing basic care for T but failed to do so throughout the periods of the assessments so as to show that he had the ability to prioritise T's welfare needs consistently.

Baker LJ noted: “I therefore accept Ms MacLynn's submission [for the local authority] that, while the father's diagnosis may have had a bearing on some of the risks identified in this case, the majority and the most serious identified risks are not linked to autistic spectrum disorder.”

The Court of Appeal judge said: “I bear in mind the more flexible approach to be adopted when considering applications to admit fresh evidence on appeals in children's cases. But in circumstances where the appellant has failed to establish either that the evidence is credible or that it would have an important influence on the result of the case, I conclude that the report should not be admitted for the purposes of this proposed appeal.

“There is therefore no basis for the second ground of appeal and no merit in the first ground. In those circumstances, I would refuse permission to appeal.”

Lord Justice Dingemans and Lord Justice Singh agreed.

Lottie Winson