Re C & Ors (Care Proceedings: Adequacy of Reasons)
[2023] EWCA Civ 334
EY (Fact-finding hearing), Re
27 October 2023
[2023] EWCA Civ 1241
Court of Appeal
A court case about a teenager and their dad was dismissed, but a higher court said the first judge made mistakes in looking at the evidence, especially an expert's report. They are having a do-over trial.
Key Facts
- •Care proceedings concerning a 14-year-old non-binary young person, E.
- •E's family has a long history with social services due to concerns about the mother's mental health and parenting.
- •Allegations of neglect and sexual abuse were made against the father.
- •A police investigation concluded with no further action.
- •E made allegations of physical abuse and sexualised statements.
- •E was placed in foster care.
- •The Family Court dismissed the local authority's application for care orders.
- •The local authority appealed the decision.
- •A central issue is the judge's treatment of a clinical psychologist's report.
Legal Principles
Threshold criteria for making orders under s.31(2) of the Children Act 1989 must be satisfied.
Children Act 1989
The child's welfare is the paramount consideration.
Children Act 1989
Family Procedure Rules govern the conduct of proceedings.
Family Procedure Rules
Experts must comply with their instructions and not investigate disputed facts.
An appellate court will not interfere with findings of fact unless compelled to do so.
Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5, Volpi and another v Volpi [2022] EWCA Civ 464, Re T (Fact-Finding: Second Appeal) [2023] EWCA Civ 475
Expert evidence must be assessed in the context of all other evidence.
Griffiths v TUI (UK) Ltd [2021] EWCA Civ 1442, County Council v K D & L [2005] EWHC 144 (Fam), Re T (Children) [2004] EWCA Civ 558
Findings of fact must be based on a balance of probabilities.
Re B [2008] UKHL 35, Re H and Others (Minors) (Sexual Abuse: Standard of Proof) [1995] UKHL 16, Re J (Care Proceedings: Possible Perpetrators) [2013] UKSC 9, Re B (Care Proceedings: Appeals) [2013] UKSC 33
A judge is not bound by a threshold document and can make findings beyond it, provided it is fair to the parties and within the known parameters of the case.
Re G and B (Fact-Finding Hearing) [2009] EWCA Civ 10, Re W (A Child) [2016] EWCA Civ 1140, Re L (Fact-finding Hearing: Fairness) [2022] EWCA Civ 169
Children and Families Act 2014, section 13 governs the instruction of experts in children proceedings.
Children and Families Act 2014
Family Procedure Rules Part 25 and Practice Direction 25C govern the use of experts in family proceedings.
Family Procedure Rules
Outcomes
Appeal allowed on grounds 1 and 2.
The judge erred in his treatment of the expert's report and failed to consider the evidence as a whole in assessing the risk of significant harm.
Appeal dismissed on ground 6.
The judge was not obligated to make findings beyond those sought by the local authority, especially when not specifically requested.
Retrial ordered.
The flaws in the judge's evaluation necessitate a rehearing.