D (A Child), Re

In care proceedings, the judge is the decision-maker, not the expert. Where expert opinion is undisputed, it should be rejected only for sound and articulated reasons. The judge may weigh it against empirical, historical and other factual evidence, and may prefer that evidence after a proper evaluation.

The threshold under the Children Act 1989, section 31(2), is objective. A parent's actual intellectual or psychological characteristics do not lower the standard of reasonable care. Hostility towards social workers does not, by itself, establish inadequate parenting. Criticism of a local authority's earlier conduct must remain separate from the present assessment of risk and welfare.

Six children had been involved in longstanding care proceedings. The local authority sought the adoption of the two youngest children and long-term fostering for the others, relying principally on psychological evidence that the parents would not provide adequate parenting throughout the children's minority.

Mostyn J discharged existing care orders for all but one child and refused new care orders for the two youngest. The local authority and the children's guardian appealed. The central issue was whether the judge was entitled to prefer empirical evidence of the parents' observed performance to the psychologist's prognosis, and whether his references to disability and discrimination involved a misdirection on the statutory threshold.

1. Disposition. Leave to appeal was granted to the local authority and the children's guardian, but both appeals were dismissed.
2. Assessment of expert evidence. The judge in a care case is the decision-maker; the expert is not. Undisputed expert opinion should not be rejected without sound and articulated reasons. The judge was entitled to weigh the psychological evidence against historic, empirical and other factual evidence, including observations by an independent social worker, Home-Start and a health visitor. He did not act as an amateur psychologist. He evaluated the different sources of evidence and was entitled to find the expert prognosis wanting.
3. Local authority conduct. The judge was entitled to criticise the abrupt removals of the children. However, indignation about earlier conduct must not intrude into the separate decision whether the children could safely return home. The fact that a removal was unjustified did not determine whether the current care application was sound.
4. Parenting and cooperation. A parent's hostility or lack of cooperation towards social workers is not, by itself, justification for a care order. Its significance depends on the facts. It may indicate that necessary support cannot be provided, or may reflect generalised violence, but hostility confined to perceived interference by authorities does not establish inadequate parenting.
5. Statutory threshold. The test under section 31(2) of the Children Act 1989 is objective. The standard of reasonable care is not adjusted to the particular parent's intellectual or psychological characteristics. A parent may fail to provide reasonable care despite doing their incompetent best. The judge had found no likelihood of significant harm, so the construction of section 31(2)(b) was not reached. Concepts of discrimination under the Disability Discrimination Act 1995 were irrelevant to the judicial threshold assessment, although professionals should adapt their dealings with disabled parents.
6. Language of the judgment below. The criticisms of the psychologist and guardian were unjustified and intemperate. Nevertheless, the decision was not vitiated because the judge's reasoning, read as a whole, showed a proper evaluation of the evidence. Stanley Burnton LJ agreed with that conclusion, and Mummery LJ agreed with both judgments.

1. Court of Appeal (Civil Division) — On appeal under [2010] EWCA Civ 1000, leave was granted and both appeals were dismissed.
2. Birmingham District Registry (Mostyn J) — Existing care orders were discharged for all but one child, and fresh care orders for the two youngest children were refused.