JD & Ors v City & County of Swansea & Anor

A final care order that substantially interferes with a child’s and parents’ family life under Article 8 must be a measure of last resort. Where expert evidence is considered necessary to assess sexual-offending risk and its management, the court must not prematurely close the enquiry by discarding that evidence or assuming that further assessment cannot assist. The relevant expert should assess whether recommended work remains worthwhile, particularly where an adjournment preserves arrangements already regarded as safe and causes little prejudice to the child. The appeal was allowed and an interim care order substituted pending further expert input.

Parents appealed against a full care order made by Swansea County Court on 7 May 2010 in respect of their young daughter. The order endorsed a plan under which the child would remain with her mother only if the father lived elsewhere and had supervised contact, effectively requiring permanent separation of the parents.

The threshold under section 31 of the Children Act 1989 had been found satisfied. The parents principally sought an adjournment of up to 16 weeks for risk-management work recommended by Mr Cullen, following assessments by the Lucy Faithfull Foundation and Dr X. The central issue was whether the judge was entitled to conclude finally that the risk was unmanageable and to refuse further expert work while purporting to proceed on the basis of a low-risk assessment.

The appeal was allowed unanimously. Lord Justice Wilson gave the principal judgment, with which Lord Justice Rix and Lord Justice Stanley Burnton agreed. The full care order was set aside, an interim care order was made, and directions were given for further consideration of the proposed risk-management work.

1. A full care order which substantially interferes with the child’s and parents’ rights to respect for personal and family life under Article 8 must be a decision of last resort. The same conclusion followed whether the matter was approached through Article 8 or sections 1(1) and 1(3) of the Children Act 1989.
2. The appeal did not reopen the judge’s decision to put the earlier reports aside or her criticisms of Dr X’s methodology. However, having directed expert evidence because risk assessment and risk management were necessary to the determination, the judge could not effectively jettison that evidence and close the enquiry without expert endorsement.
3. The judge’s assumption that no further psychological report could improve upon Dr X’s report was flawed. A further assessment without the methodological defects identified by the judge could reach the same low-risk conclusion and nevertheless assist the court. Whether the recommended short programme remained worthwhile was for Mr Cullen, the expert proposing it, to assess in light of the judge’s findings.
4. The judge also failed to address the relative lack of prejudice to the child from an adjournment. During the proposed work, the child would remain under arrangements regarded by the local authority and guardian as optimum. That was a major factor in deciding whether to continue the enquiry.
5. The supplementary response materially contradicted the stated basis of the judgment. If the judge had proceeded on a higher level of risk than that assessed by Dr X and adopted by Mr Cullen, the decision lacked expert support. If she had proceeded on the low-risk basis stated in the judgment, her refusal of further assessment rested on a false premise.
6. The local authority was directed to send the relevant judgments to Mr Cullen. He was to report whether the proposed work remained worthwhile and, if so, conduct it subject to further directions. The parties were given liberty to apply, and the proceedings were to be heard by the identified Family Division judge or another circuit judge.

• Court of Appeal (Civil Division): On 26 January 2011, the court unanimously allowed the parents’ appeal, set aside the full care order, made an interim care order and gave further directions: [2011] EWCA Civ 34.
• Swansea County Court: On 7 May 2010, Her Honour Judge Mifflin made a full care order in respect of the child.