R (A Child)

When choosing between a Care Order and a Supervision Order, a judge must give reasons engaging with the recommendations of all material experts and the child's guardian. Where the judge departs from unanimous expert evidence about the practical and psychological consequences of the proposed order, the obligation to explain and justify that departure is heavy. Experts may give relevant evidence about the likely effect of an order on a parent's confidence, self-esteem and emotional well-being; their lack of legal expertise does not answer that evidence. The assessment should address current circumstances, treatment progress and present risk, rather than being dominated by the historical seriousness of past abuse.

Care proceedings were issued after the child's older sister disclosed gross sexual abuse by her father. The proceedings continued while the father underwent treatment and arrangements were made to protect the child, K.

At the final hearing, the threshold was established and future management was largely agreed. The central issue was whether K should be made subject to a Care Order or a Supervision Order. The four experts and the child's guardian considered that a Care Order would offer no greater practical protection and might undermine the mother's confidence and well-being. HHJ Norrie nevertheless made a Care Order. The mother sought permission to appeal, which was granted following Wall LJ's direction for an oral hearing. The central question was whether the judge had adequately explained her rejection of the unanimous expert and guardian evidence.

Appeal allowed. The Care Order was set aside and a Supervision Order substituted.

1. The judge's reasoning was fatally deficient because she expressly recognised that the experts and the guardian opposed a Care Order, but explained only why she rejected the mental health experts' views. She gave no reason for rejecting the guardian's opinion, although she had recognised that the guardian's experience and access to legal advice made the stated justification inapplicable to her. The obligation to explain the rejection of that body of evidence was therefore unmet ([8]-[10]).
2. The unanimous expert evidence was not directed to the legal niceties of the two orders. It addressed the practical and psychological consequences of making a Care Order, including its likely detrimental effect on the mother's self-confidence, self-esteem and emotional well-being. Those matters were within the experts' field and could not be discounted merely because they were not lawyers ([10]).
3. It was a serious matter for a judge, on a fine issue concerning the appropriate form of order, to depart from the unanimous experts and the guardian. The obligation to justify such a departure was particularly heavy ([10]).
4. The judge's reasoning was also overly concerned with the historical abuse of the older child instead of analysing the relevant present circumstances, including the father's response to treatment and the current level of risk. The historical facts and the judge's natural concerns about them did not cure the deficiencies in the reasoning ([10]).

Lord Justice Scott Baker agreed. The respondent local authority was ordered to pay the appellant's costs of £6,717.18 ([11]).

• Brighton County Court: HHJ Norrie made a Care Order at the conclusion of care proceedings, despite opposition from the parents, the experts and the child's guardian.
• Court of Appeal (Civil Division): Permission to appeal was directed for an oral hearing by Wall LJ. The Court allowed the appeal and substituted a Supervision Order: [2005] EWCA Civ 1792.