Court of Appeal clarifies weight of expert evidence in EY care proceedings
Introduction
This article provides an analysis of the case law, EY (Fact-finding hearing): EWCA-Civ 2023 1241, a decision from the Court of Appeal (Civil Division) concerning care proceedings related to a young person identified as “E”. The appeal centred around the evaluation of the evidence by the original trial judge, particularly the weight given to the expert evidence, and the findings as to whether E was suffering or likely to suffer significant harm.
Key Facts
In the proceedings, it was contested whether E, a 14-year-old who identifies as non-binary, was suffering or at risk of significant harm while under the care of their father. Initial proceedings failed to establish the threshold criteria necessary to make a care order under s.31(2) of the Children Act 1989, leading to the local authority’s appeal. The threshold criteria under discussion revolves around whether the child is experiencing, or is likely to experience, significant harm due to inadequate parental care.
Legal Principles
Overview of Evidence
The appellate court scrutinized the trial judge’s “binary” approach to facts – that something either happened or did not – emphasizing that evidence should not be considered in isolation but rather as part of an integrated analysis.
Expert Evidence
The role and weight of expert evidence in legal proceedings are principal topics of discussion. In particular, the case examines the boundaries of expert contributions and the reliance of judges on their reports. The court examined the degree to which Dr. Timberlake, a clinical psychologist, informed the assessment and how his findings about E’s potential harm were treated.
Hearsay Evidence
The evaluation of hearsay evidence, particularly statements from children, and the judge’s approach to this issue, was another key point. The court considered the adequacy of the weight placed upon the children’s testimonies regarding their experiences and the alleged harm.
Threshold for Significant Harm
Criteria for determining “significant harm,” as mandated by s.31(2) of the Children Act 1989, were foundational in the appeal analysis. The appellate court provided clarification on what constitutes systemic risk or harm and the necessity of linking established facts to probable future harm.
Fairness and Case Management
The appellate court considered the judge’s duties in case management, particularly the obligation to ensure parties know the case they face, to manage shared expectations, and to secure fairness in making findings within the “known parameters” of the case.
Outcomes
The appeal was allowed on grounds that the trial judge erred in:
- Misunderstanding the scope of Dr. Timberlake’s expert instructions and hence the weight his unchallenged evidence should carry;
- Failing to evaluate the totality of evidence regarding the risk of sexual harm E faced, effectively discounting earlier incidents labeled as “historic”.
The directions were given for a recount of the fact-finding hearing by another judge, with the Family Presiding Judge to oversee allocation.
Conclusion
The Court of Appeal’s decision in EY (Fact-finding hearing) underscores the importance of a systematic and holistic evaluation of evidence in care proceedings. Key legal principles emphasized include the careful treatment of expert testimony, the correct approach to hearsay evidence, and the application of statutory criteria for defining significant harm in the context of child welfare cases. The case exemplifies the appellate court’s role in verifying trial judges’ fidelity to procedural fairness and the accurate application of the law. The retrial will require careful reconsideration of the evidence, with an emphasis on a balanced weighting of all available factual findings and expert opinions.