D (A Child), Re

An appellate court should exercise particular restraint before interfering with a trial judge’s assessment of a child’s welfare and the capacity of proposed carers. Where the trial judge has had an extensive opportunity to assess the adults concerned and has reached a clear conclusion, the Court of Appeal should not substitute its own view merely because it would have made a different order or has continuing anxiety about the child’s future. Intervention requires a sufficient error or misdirection. Controversial material in further evidence should not be used on appeal to decide whether the original judgment was plainly wrong where fairness requires that it be tested at a later review. The order may nevertheless be adjusted consequentially to reflect the proper timing of that review.

Sunderland Borough Council appealed from an order made by His Honour Judge Carr in the Sunderland County Court on 23 January 2001. The judge had made care orders for the three eldest children but, for the youngest child, E, had made a residence order in favour of her paternal grandparents with a local-authority supervision order and a review after approximately six months.

The local authority argued that the judge had underestimated E’s sexual disturbance and special needs, the family’s intergenerational pattern of sexual dysfunction, the grandparents’ past failure to protect, and the practical and legal difficulties of the proposed arrangement. It also relied on a supplemental guardian’s report obtained after permission to appeal. The central issue was whether the criticisms and additional material disclosed a sufficient error or misdirection to justify appellate intervention.

1. Appeal dismissed. The residence order in favour of the paternal grandparents, supported by a supervision order, was allowed to stand. The supervision order was to run from the conclusion of the appeal, and the review was to be held by the end of December rather than at the end of July. Costs were subject to public funding assessment.

2. Per Lord Justice Thorpe, with Lord Justice Mantell agreeing, the Court of Appeal acknowledged substantial criticisms of the trial judge’s assessment. There were real anxieties about E’s vulnerability, the extent of her disturbance, the grandparents’ protective capacity and the family pattern. The appellate court nevertheless had to respect the trial judge’s unrivalled opportunity, after an extensive hearing, to assess the grandparents individually and together.

3. It would be unprincipled to overturn the order simply because the appellate court considered it imperfect or would have made a different decision. In the absence of a sufficient error or misdirection, the Court of Appeal should not substitute its own judgment for the trial judge’s assessment of adult capacity, dangerousness and future welfare.

4. The supplemental guardian’s report contained substantial contentious material. It would be unfair to use that material on the appeal to determine whether the original decision was plainly wrong. The material was instead to be considered at the future review directed by the trial judge.

5. The court accepted that the review provision was imperfect and more characteristic of private-law proceedings, but made only consequential adjustments to its timing. As a matter of principle, the order had to stand.

• Court of Appeal (Civil Division): Appeal by Sunderland Borough Council from the Sunderland County Court order of His Honour Judge Carr dated 23 January 2001. Permission to appeal had previously been granted by Hale LJ on 29 March 2001. The appeal was dismissed under [2001] EWCA Civ 904, subject to consequential changes to the supervision and review timetable.