K (Children), Re

In public law children proceedings, where a realistic rehabilitation proposal emerges during an intended final hearing, the court must adopt a clear procedural course. It may authorise assessment and adjourn the final determination until its outcome is known, or conclude the hearing by refusing further assessment on a properly supported evidential basis. It should not make an equivocal order that neither endorses nor vetoes assessment while postponing final decision. A refusal based on a single expert’s limited and previously undisclosed opinion may be vulnerable on evidential and procedural-fairness grounds. The court must also give proper weight to full professional investigation before separating children from their natural family and to family upbringing wherever safely possible.

Public law proceedings concerned three children, including a boy who had suffered serious injuries and a sibling who had died from fatal injuries. The first-instance judge, Wood J, had been expected to conduct a final hearing. During the proceedings, fresh proposals emerged for the father to be assessed as the children’s sole carer, and the parties initially agreed that the assessment should proceed.

At the June 2009 hearing, an expert called by the court opposed the proposal, although his view was based on limited and outdated information and had not been notified in advance. The judge declined to endorse the assessment but also declined to veto it, making interim care orders, adjourning the final hearing and directing a further report. The local authority subsequently decided not to proceed with rehabilitation. The guardian appealed, and the central issue was whether the judge’s equivocal procedural course was permissible.

The Court of Appeal, in a unanimous judgment delivered by Thorpe LJ with Scott Baker and Wall LJJ agreeing, allowed the appeal.

1. Clear procedural choice required. The judge had to choose between two coherent alternatives: permitting the father’s assessment and adjourning the final determination until its outcome was available, or concluding the intended final hearing by refusing further assessment. The order adopted an impermissible middle course. It expressed substantial doubts about the assessment while postponing the final hearing on the assumption that the assessment might not occur, producing confusion and procedural uncertainty.
2. Evidential and fairness concerns. A firm veto would also have been vulnerable. The only expert supporting that course had not seen the child since January, had not independently investigated the father’s proposal made in May, and had given no prior indication that he would oppose it. Although the parties were allowed to cross-examine him, reliance on that evidence to prevent assessment would raise a serious fairness concern.
3. Assessment should proceed. In the circumstances, the judge’s realistic course was to allow the assessment, while recording any reservations for the professionals. The assessment might not support rehabilitation, but allowing it created no identified prejudice to the children. Children should not be separated from their natural family without full professional investigation and proper regard to the possibility of family upbringing.
4. Orders. Paragraph 7 of the order was set aside. Paragraph 5 was to be rewritten to provide for an expert report only if agreed. The adjourned final hearing was to take place before another judge.

• Court of Appeal (Civil Division): On appeal from the decision and orders of Wood J in Swansea District Registry, the Court allowed the appeal. [2009] EWCA Civ 987