Plymouth City Council v G (Children)

A judge may reject expert evidence where the circumstances justify doing so, but must give full and clear reasons. An appellate court should respect the trial judge’s advantage in evaluating witnesses and avoid substituting its own assessment through narrow textual analysis.

Dispensing with parental consent to adoption requires an imperative welfare need. General benefits associated with adoption may suffice in many cases, but the evidence must address the particular child and compare every realistic placement option. Where adoption and long-term fostering remain unresolved and the care plan depends on adoption, the court should ordinarily retain control, adjourn the placement application and make interim rather than final care orders.

The local authority sought care orders for three children and placement orders for the two younger children. The Recorder made full care orders but dismissed the placement applications because the evidence had not established that adoption, rather than long-term fostering, was required. He also made defined contact orders.

The local authority appealed, arguing that the Recorder had wrongly rejected a psychologist’s evidence and had misjudged the case for adoption. Alternatively, it submitted that he should have adjourned the placement applications and made interim care orders while further expert evidence was obtained. It also challenged the contact arrangements.

The central issues were whether the Recorder had permissibly assessed the evidence, whether adoption had been established as necessary, and whether final care orders could properly be made while the children’s long-term placement remained unresolved.

1. The appeal was allowed in part. The Recorder was entitled to reject the psychologist’s evidence. Whether a judge may disagree with an expert depends on the circumstances of the particular case. The judge must explain that disagreement fully and clearly. The Recorder had rational concerns about the expert’s experience, her treatment of the placement options and the practical consistency of her recommendations.

2. An appellate court must recognise the trial judge’s advantage in evaluating witnesses. That advantage extends beyond credibility and primary facts to the evaluation and relative weight of the evidence. The appellate court should avoid using narrow textual criticism to substitute its own assessment. Toulson LJ particularly endorsed Black LJ’s reasoning on this point, and Carnwath LJ agreed.

3. The Recorder was entitled to find that adoption had not yet been established for the two younger children. Under section 52(1)(b) of the Adoption and Children Act 2002, parental consent may be dispensed with where the children’s welfare requires it. “Requires” connotes an imperative or demand, rather than something merely optional. Although the general benefits of adoption may often be sufficient for young children, this case required analysis of the children’s established family relationships, progress in foster care and realistic long-term alternatives.

4. The social worker’s and guardian’s material did not provide an adequate comparative analysis of adoption and fostering. A statutory checklist or pro forma does not alone provide the necessary reasoning. The court requires a narrative explanation of how the relevant factors fit together, an analysis of the advantages and disadvantages of each realistic order, and a fully reasoned recommendation.

5. The Recorder nevertheless erred by making final care orders while declining to approve the adoption care plan and leaving unresolved the fundamental choice between adoption and long-term fostering. The court should have retained control of the proceedings, evidence and timetable. Dismissing the placement applications ended the guardian’s involvement and risked delay, fragmented expert instruction and left the children without a defined route to permanence.

6. The full care orders for the two younger children and the dismissal of their placement applications were set aside. The placement applications were adjourned, interim care orders were substituted for 28 days, and urgent directions were required for expert evidence and a final hearing. Their contact arrangements were to be reconsidered at that hearing. The appeal against the contact order concerning the eldest child was dismissed because the Recorder had not been plainly wrong.

• Court of Appeal (Civil Division): By [2010] EWCA Civ 1271, unanimously allowed the appeal in part. It set aside the final care orders for the two younger children and the dismissal of their placement applications, adjourned those applications, and substituted interim care orders. It otherwise upheld the Recorder’s refusal to grant placement orders on the existing evidence and dismissed the appeal concerning the eldest child’s contact order.
• Plymouth County Court: Mr Recorder Tolson QC made full care orders for all three children, dismissed the placement applications concerning the two younger children, and imposed defined contact arrangements. No reported citation is stated.