S (A Child)

In care proceedings, a local authority must confine material sent to a jointly instructed expert to material that is or may be relevant to the expert’s defined task. Allegations of sexual misconduct that the authority neither pursues nor proves cannot be used at the welfare or disposal stage as a basis for assessing sexual risk or deciding the public law order. Reports, detail and opinions about their truth should therefore be excluded where they are irrelevant or purely prejudicial. The assessment remains fact-sensitive. A caution, an acquittal or related custody may have evidential relevance distinct from the truth of an unproved allegation.

The parents faced a care application concerning their fifth child. Their four older children had previously been made subject to care orders, and the local authority relied on concerns about their ability to provide safe and adequate parenting. The authority did not base the application on allegations of sexual misconduct by the father or assert that he presented a sexual risk.

The case papers nevertheless contained unproved complaints, social services opinions and police material relating to prosecutions ending in acquittal. HHJ Black made a case management decision on 14 February 2008 concerning the material to be sent to a jointly instructed independent social worker before the final hearing. The father appealed, raising the proper boundary between relevant historical material and unproved, prejudicial allegations in expert papers.

Permission was granted and the appeal was allowed in part. Thorpe LJ gave the principal reasons, with which Hughes LJ agreed. The operative order recorded that the appeal was allowed.

1. Governing principles. The decision was fact-sensitive and did not purport to establish an exhaustive code for case management. The first principle was that stated by Charles J in Re R (Care Disclosure: Nature of Proceedings) [2002] 1 FLR 755. Where allegations had not been pursued or proved, they could not be treated at the welfare or disposal stage as establishing abuse or as a basis for assessing risk and deciding the public law order. Thorpe LJ expressly supported that reasoning and applied it by logical extension to material supplied to experts.
2. Expert material. Experts should receive material that is relevant or potentially relevant to their defined task, but irrelevant, peripheral or purely prejudicial material must be rigorously excluded. It is improper simply to send an expert everything accumulated by the local authority. Material that may unfairly damage already difficult relationships between the family and professionals should not be introduced without proper relevance.
3. Application. The possible relevance of the bare fact of allegations as part of the family’s historical experience remained case-specific. In this case, the detail of the complaints, their dates, complainants and alleged conduct, together with opinions about their truth, was irrelevant. The caution for bigamy based on a confession could be included. Prior prosecutions ending in acquittal could also be recorded where their relevance lay, for example, in the father’s custody. Police incident summaries were not objectionable, although their relevance remained for the expert. The detailed crime reports and rape-prosecution papers identified in section G were excluded, as were opinions on the truth of the allegations elsewhere in the papers.
4. The expert was to be directed that the allegations did not amount to a sexual risk requiring assessment. The parties were invited to draw a paragraph defining the boundary in the letter of instruction.

• Court of Appeal (Civil Division) [2008] EWCA Civ 365: permission granted; appeal allowed in part, with directions limiting the material supplied to the jointly instructed expert.
• Brighton County Court: HHJ Black made the challenged case management decision on 14 February 2008 in care proceedings concerning the child.