S & L (Children), Re

In care proceedings, an appellate court should not lightly interfere with a trial judge’s case-management discretion, including decisions about expert or parenting assessments. However, refusing to assess a parent may be an error where the parent has not been adequately assessed, the assessment could materially inform whether the parent can care for the children, and it can be completed without disrupting the proceedings. The court must be cautious before effectively ruling out a parent, particularly where intellectual capacity may be limited and professional assessment may be the only reliable method of evaluating parenting ability. A previous direction or plan for assessment, and the absence of sufficient reason for changing it, are material considerations. Appellate intervention is justified where the decision is legally erroneous, rather than merely because the appellate court would have exercised the discretion differently.

The father appealed against a decision made by His Honour Judge Waine in Northampton County Court on 25 March 2011 during care proceedings concerning his three children. The decision followed a fact-finding hearing concerning sexual abuse allegations made by one child against the mother’s brother. The judge made no factual findings against the father and no finding that either parent had failed to protect the children from sexual harm.

The father sought a cognitive assessment and a parenting assessment so that he could be considered as the children’s sole carer if the mother proved unable to care for them. The judge refused, considering the assessments unlikely to assist and an excessive use of public funds. The central issue was whether that refusal was an impermissible and premature exclusion of the father, particularly given the earlier plan for assessments and the absence of any likely disruption to the case timetable.

1. Appeal allowed. The Court of Appeal unanimously held that the refusal to permit the two assessments was an erroneous exercise of case-management discretion. Permission was granted for the assessments to be carried out.
2. An appellate court should be slow to interfere with a trial judge’s management of care proceedings. That includes a robust exercise of discretion concerning the assessments required and the evidence to be obtained. Intervention is nevertheless appropriate where the decision falls outside the proper exercise of that discretion and is not merely a different assessment of the facts.
3. The father had not been adequately assessed as a sole parent. The existing local authority assessment concerned his ability to care for the children jointly with the mother and was not sufficient for the issue then arising. The father’s true parenting abilities could, in some cases, only reliably be assessed by relevant professionals outside the courtroom. That consideration was especially important because his intellectual capacity might be limited.
4. The children’s interests required that the father be assessed in case he could care for them. The earlier intention that both parents should be assessed had not been shown to have become unnecessary, and the judge gave no sufficient explanation for changing that course. The proposed assessments could be completed without derailing the timetable; postponing them until the mother had been ruled out could instead disrupt it. Without assessment, the father was or might be effectively excluded as a possible carer.

• Court of Appeal (Civil Division) — in [2011] EWCA Civ 1022, allowed the father’s appeal and authorised cognitive and parenting assessments.
• Northampton County Court — His Honour Judge Waine refused permission for the assessments on 25 March 2011 during care proceedings.