M-W (A Child), Re

A court assessing the threshold for a care order must determine whether, when protective arrangements began, there was a real possibility of significant future harm attributable to the care likely to be given. Facts are proved on the balance of probabilities, but the evaluation of future risk is not governed by that standard.

Admissible evidence emerging later may establish the threshold if the parents have a fair opportunity to answer it. Although judges decide cases and may reject expert opinion, they must have a sound basis for doing so and explain their reasoning. A judgment cannot stand where it dismisses care proceedings without addressing professional evidence that materially supports the alleged risk.

The local authority brought care proceedings concerning a medically vulnerable young child. The Newcastle upon Tyne County Court held that the threshold criteria under section 31 of the Children Act 1989 had not been proved and dismissed the proceedings.

The judge commended the mother's physical care under difficult conditions and inadequate support. He nevertheless failed to analyse evidence from a psychiatrist, psychologist, independent social worker and guardian concerning the longer-term risks arising from her mental health and psychological instability.

The local authority appealed. The central issue was whether the judge had given sufficient reasons for rejecting or discounting that substantial body of professional evidence.

1. Appeal allowed unanimously. The judgment could not stand because it failed to address material professional evidence supporting a real possibility of future significant harm. A single unexplained sentence disagreeing with the psychiatric evidence was an inadequate judicial response.

2. For section 31(2) of the Children Act 1989, the relevant date was when the local authority initiated protective arrangements. The question was whether, at that date, there was a real possibility of future significant harm attributable to the parents' care if no care order were made. Disputed relevant facts had first to be decided on the balance of probabilities, consistently with Re M (A Minor) and Re H (Minors).

3. Evidence concerning the threshold may emerge or come into focus at the final hearing or after proceedings begin. Admissible later evidence may prove the threshold where the parents can answer it and the process is fair and compliant with article 6 of the European Convention on Human Rights.

4. Experts advise the court; they do not decide the case. A judge may accept or reject an expert opinion, or prefer one expert to another, but must have a sound basis and explain the choice. The first-instance judge did neither. His emphasis on the child's successful physical care and the inadequacy of support did not answer the distinct evidence of longer-term psychological and emotional risk.

5. Re H [2007] EWHC 2798 (Fam) was materially different because it concerned intervention resulting from a failure to provide adequate support. The psychiatric evidence here identified a separate risk arising from the mother's psychological instability.

6. The court declined to request supplementary reasons under English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605. The omission affected a critical body of evidence, and reconsideration by the same judge could not restore confidence in the result. The entire case was therefore ordered to be reheard by a different judge. The Court of Appeal expressed no view on the eventual outcome.

1. Court of Appeal (Civil Division): Permission to appeal granted, the appeal allowed and a complete rehearing directed before a different judge: [2010] EWCA Civ 12.
2. Newcastle upon Tyne County Court: His Honour Judge Lancaster held that the section 31 threshold under the Children Act 1989 had not been proved and dismissed the care proceedings. No citation is stated.