W (a child), Re

In care proceedings, a judge may reject expert and guardian evidence, but must give good reasons for doing so. The obligation is especially important where the evidence is strong, consistent and directed to the central question of parental capacity. It is not enough to rely on a carer’s genuine acceptance of the child’s need for therapy, recent improvement, or the general risks of removal. The judge must engage with the experts’ fundamental reasoning and explain why it is not accepted. Where the reasoning of a first-instance decision is materially defective, the appellate court may set it aside without itself making the substantive placement decision. The welfare decision may instead be reconsidered by the trial judge after a prompt, focused further investigation, while preserving the child’s interim stability.

The London Borough of Lewisham appealed against Her Honour Judge Pearlman’s refusal on 21 February 2005 to make a care order under Children Act 1989, section 31, for CJ, then living with his maternal aunt, Sabrina. Lewisham’s care plan involved removal, short-term foster care and eventual adoption outside the family. The judge instead made interim orders leaving CJ with Sabrina and involving the London Borough of Bromley.

The appeal concerned whether the judge had adequately explained her rejection of consistent expert and guardian evidence that Sabrina lacked the capacity to meet CJ’s long-term emotional and parenting needs, and what order should follow if the judgment could not stand.

1. Appeal allowed. The judge’s order was set aside because her reasoning did not explain why she rejected the evidence of Dr Freedman, Dr Lucey and the guardian on the central issue of Sabrina’s parental capacity.
2. A judge is entitled to reject expert evidence and to depart from a guardian’s view, but must give good reasons. That duty is heightened where the evidence is powerful and consistent. The reasons must address the experts’ fundamental conclusion, not merely peripheral matters such as a late acceptance of the child’s need for therapy or recent improvement in the placement.
3. The judge’s reliance on Sabrina’s genuine and apparently lasting change of position did not answer the experts’ conclusion that she lacked the emotional and parental capacity required to care for CJ in the long term. The experts maintained their views after being informed of, and questioned about, her acceptance of therapy.
4. The Court of Appeal declined, by a narrow margin, to impose a care order and remove CJ itself. The proper course was a prompt reconsideration by Judge Pearlman after a short further investigation by Dr Lucey and the guardian. Bromley was expected to complete its core assessment and identify the support package available if CJ remained with Sabrina.
5. Pending reconsideration, the provisional mechanism was an interim care order in favour of Lewisham, with CJ continuing to live with Sabrina and not being removed except in an emergency. The court considered that retaining Lewisham and the guardian in the proceedings was legitimate under section 105(6)(c) of the Children Act 1989. Lord Justice Thorpe agreed that the appeal should be allowed. He emphasised that a flawed explanation did not necessarily mean that the discretionary decision itself was wrong, and that reconsideration was the principled equivalent of a retrial.

• Court of Appeal (Civil Division) — Appeal from the Family Division of the High Court. On [2005] EWCA Civ 649, the appeal was allowed and the judge’s order set aside. The consequential welfare decision was to be reconsidered after focused further investigation, with interim arrangements preserving CJ’s residence with Sabrina pending review.
• High Court (Family Division) — Her Honour Judge Pearlman, sitting as a Deputy High Court Judge, refused a care order on 21 February 2005 and made interim orders leaving CJ with Sabrina.