T (Children), Re

In care proceedings, an appellate court may decline to remit a threshold or protective-order issue for retrial even where the evidence was thin and a fuller inquiry would have been preferable. It should consider whether the trial judge had seen and heard enough of the parents to assess risk, and balance a retrial’s benefits against delay, cost and disruption to the welfare timetable. An extempore judgment should be read in its procedural context and not subjected to undue analytical criticism. A child-safety issue may be revisited at the disposal hearing if material evidence emerges that was unavailable earlier. Proper and complete inquiry remains essential, and therapeutic assessment may be important before final welfare decisions.

A local authority appealed from an order made by His Honour Judge Catlin in care proceedings concerning two children. The younger child, H, had suffered multiple fractures. The father admitted responsibility, and expert evidence supported his account. After most threshold facts were agreed, the judge heard limited oral evidence and submissions. He found no likelihood of significant harm to the older child, J, at the commencement of proceedings and did not maintain a protective order in relation to her. The local authority argued that the evidence was insufficient and sought a retrial or continuation of protective control. The central issue was whether the shortcomings in the inquiry required remittal despite the resulting delay, cost and effect on the timetable for H’s disposal.

Permission to appeal was granted, but the appeal was dismissed.

1. The Court of Appeal accepted that the evidential foundation for the finding concerning J was weak. Once the medical issue concerning the mechanism of H’s injuries had been resolved, the remaining risk issue had not been explored through a fuller evidential investigation. The local authority had not cross-examined the father on matters relevant to risk, including concerns recorded in a social-work interview.
2. Nevertheless, the court declined to order a retrial. The critical consideration was whether the experienced public-law judge had seen and heard enough of the parents to repose trust in them. The appellate court was entitled to take account of the significant additional costs and delay that a retrial would cause, including the risk of derailing the forthcoming disposal hearing concerning H.
3. An extempore judgment delivered after a rapidly changing evidential course should not be subjected to an over-analytical criticism of its structure or sequence. The judge had dealt adequately with the submissions and had made findings on the parents’ credibility and relationships within the family.
4. The local authority remained entitled to reopen J’s safety at the disposal hearing if material factual or expert evidence emerged which had not been available to, or considered by, the judge.

Astill J agreed that dismissal was the most constructive course, while expressing disquiet that an interim or final order had been made, or withheld, without a proper and complete inquiry. The court also stressed the importance of an appropriate therapeutic programme for the father, developed collaboratively with the local authority and with the guardian’s informed involvement before disposal of H’s proceedings. Public-funded costs assessments were ordered for the respondents.

1. Court of Appeal (Civil Division): Permission to appeal granted; appeal dismissed. Public-funded costs assessments ordered for the respondents.
2. Reading County Court: His Honour Judge Catlin determined the threshold issues on 11 April 2001, including whether J was likely to suffer significant harm, and made directions for the future disposal of H’s proceedings.