W (A Child)

A care or placement decision should not rest materially on allegations that emerged during trial as untested hearsay, particularly where the alleged maker was not available for assessment and the evidence could not be challenged in cross-examination. If such evidence became central to the judge’s reasoning and creates a fundamental risk of injustice, the appellate court should not simply affirm the order. Where it cannot safely substitute its own welfare decision, the appropriate course is to allow the appeal and direct a retrial. A strong case on the remaining evidence does not remove the need for a fair determination.

This was an appeal by the natural father and his wife against orders made by His Honour Judge Gypps in the Chelmsford County Court committing a child to the care of the local authority and granting a linked placement order. The father and his wife had sought to provide the child with a permanent home within their family.

The trial judge relied significantly on alleged threats by the mother to damage the family home and abduct the child. The mother did not attend the trial. The threats were reported through the guardian and her own counsel, without independent assessment or cross-examination. The central issue was whether the orders could safely stand.

Appeal allowed. The Court of Appeal held that it was unsafe to confirm the care and placement orders and directed a retrial.

1. The trial judge had treated the alleged threats by the mother as a litmus test of the proposed carers’ ability to recognise and protect the child from emotional harm. That evidence became a significant part of the judge’s reasoning.
2. The evidential foundation was inadequate. The threats emerged for the first time during the trial and consisted of a bare account by the guardian, together with hearsay reported by the mother’s counsel. There was no assessment of the weight or reliability of the alleged statements. The father’s representatives had no opportunity to test the evidence in cross-examination, and the judge had no opportunity to assess the mother and decide whether the statements were wild talk or an indication of dangerous intent.
3. Those circumstances created a fundamental risk of injustice. The possibility that the statements were an emotional reaction or a strategic attempt to damage the father’s case made it particularly unsafe to treat them as a central welfare factor. The local authority’s case was otherwise strong, even if the threat evidence were removed, but that did not cure the defect in the decision-making process.
4. The appellate court was not in a position to substitute an alternative welfare order. The only proper course was a retrial, which was to be listed urgently before a judge of suitable experience. Lawrence Collins LJ agreed and emphasised that the carers might ultimately receive the same outcome at the retrial.

1. Court of Appeal (Civil Division): On appeal in [2007] EWCA Civ 1255, the care and placement orders were held unsafe because material threat evidence had not been properly tested. Appeal allowed and retrial directed.
2. Chelmsford County Court: His Honour Judge Gypps made a care order in favour of the local authority and a linked placement order.