R (A Child)

In care proceedings, the judge must make clear findings on disputed matters and state plainly whether the statutory threshold for a care order is met, including the position in past, present and future. Once the threshold and entitlement to a care order are established, the local authority retains discretion over case management and care arrangements. The court should not impose a rehabilitation regime unsupported by the authority. Expert evidence cannot be rejected for immaterial reasons. The seriousness of assault or exposure to domestic violence cannot be discounted because a child may later forget it. Where the evidence admits only one realistic outcome, an appellate court may make the care order directly rather than order a retrial. That order does not itself determine a placement order.

Durham County Council appealed after the Middlesbrough County Court refused care and placement orders concerning a three-year-old child. The child had been removed following serious domestic violence and had remained subject to interim care orders. An independent assessment supported permanent removal and adoption, while a later assessment of proposed relatives was adverse and they withdrew.

Despite adverse findings concerning the parents, the judge directed rapidly increasing contact and partial rehabilitation. The appeal raised issues concerning threshold findings, the evaluation and admission of evidence, the respective functions of the judge and local authority, and whether the matter should be retried or determined by the Court of Appeal.

Appeal allowed. Lord Justice Thorpe gave the leading judgment, and Lord Justice Hooper agreed, adding a separate point on the relationship between the interim order and the proposed rehabilitation.

1. Findings and threshold. Once the local authority indicated that the parents’ concessions did not go far enough, the remaining matters were disputed issues requiring evidence and findings. If the nature of the case was unclear, the judge had a duty to clarify it. The judgment was unstructured and failed to state plainly whether the local authority had established the Children Act section 31(2)(a) threshold in relation to past, present and future circumstances. That omission made the subsequent rehabilitation decision difficult to reconcile with the evidence.
2. Judicial and local authority functions. Where the local authority establishes the threshold and its entitlement to a care order, the manner in which the case is managed thereafter is for the local authority’s discretion. The judge should not impose a future management regime which the authority, on strong evidence, cannot support. This does not permit the court simply to approve an application without scrutiny.
3. Evidence and risk. The judge’s reasons for rejecting the expert report relied on immaterial considerations, including unfamiliarity with the organisation, the expert’s lack of previous experience before that judge, the report’s length and its technical language. The police report concerning the assault was materially relevant. The paramount task of protecting children required the judge to investigate and accept relevant evidence despite deficiencies in its preparation or late introduction. Direct assault and exposure to domestic violence could not properly be treated as insignificant on the premise that the child would later forget them.
4. Interim order and rehabilitation. Lord Justice Hooper observed that an interim order under section 38.2 required reasonable grounds for believing that the section 31.2 circumstances existed. It was therefore difficult to reconcile the interim order with contact which, within little more than five weeks, would involve two full days and an overnight stay with the mother.
5. Relief. A retrial would cause further delay, cost and stress, with no realistic prospect of a different result. The Court of Appeal therefore made the care order itself. It declined to make a placement order because it had not seen the relevant papers or heard the parents’ evidence on that application. A care order did not automatically endorse the care plan or determine the placement application, which remained to be listed before another judge.

• Court of Appeal (Civil Division): [2006] EWCA Civ 1638, 15 November 2006. Appeal allowed; care order made; placement order application left undetermined.
• Middlesbrough County Court: on 19 October 2006 HHJ Taylor refused care and placement orders, made an interim care order and directed staged contact and rehabilitation.