R, Re

An appellate court should not readily interfere with a trial judge’s case-management decision refusing further expert evidence where the judge has identified the issues, assessed the existing professional evidence and is satisfied that no evidential gap requires filling. In care proceedings, the welfare decision may be based on evidence from experienced social workers and a guardian, together with the judge’s assessment of witnesses. A plan to keep siblings together is not irrevocable: changed circumstances may justify separate placements where the court balances each child’s welfare, including the effects of separation and prospects for contact. The court may decline to order direct parental contact where therapeutic work or a placement transition makes it detrimental, without foreclosing later contact.

F, the father of E and social father of N, appealed against orders made by Taunton County Court on 31 October 2013. The judge dismissed his applications to discharge care orders, made a placement order for N, and declined to order contact with the children. F also challenged an earlier refusal to obtain a further psychological report from Dr Franzen. The appeal followed an earlier Court of Appeal decision, on the mother’s appeal, which had set aside N’s original placement order: [2013] EWCA Civ 1240. The central issues were whether further expert evidence was necessary, whether the proceedings and welfare assessment were fair and sufficient, whether the siblings should be separated, and whether contact orders should be made.

Lady Justice Black delivered the judgment, with Lord Justice Briggs and Lady Justice Arden agreeing.

1. Outcome. Permission to appeal was granted, but the appeal was dismissed.
2. Further expert evidence. The refusal to instruct Dr Franzen again was a case-management decision. The judge had properly identified the issues, including whether the children should be separated, and was entitled to conclude that the experienced social worker and children’s guardian could address them and that there was no evidential gap requiring a further psychologist’s report. The fact that Dr Franzen had been influential in the earlier proceedings did not make her further involvement necessary. The appellate court would not readily interfere with such a discretionary case-management decision: Re TG (Care Proceedings: Case Management: Expert Evidence) [2013] EWCA Civ 5.
3. Appellate review and welfare assessment. The trial judge had conducted the proceedings over a considerable period, heard the witnesses over two days and was well placed to assess the professional evidence, F’s progress and his capacity to meet the children’s needs. The appeal did not demonstrate any material error in his conclusion that F lacked the capability to parent either child, whether separately or together. The possibility of N returning alone had been considered.
4. Sibling separation. The earlier plan to keep the children together was not an irrevocable guarantee. Changed circumstances justified reconsideration. The evidence showed that the sibling relationship had become unhealthy and damaging for N, while E had substantial therapeutic needs. The judge was entitled to balance the competing welfare interests, recognise the distress caused by separation, and conclude that the children could cope with it. Rigid conditions concerning future sibling contact would not have assisted the search for suitable placements.
5. Contact. Under section 34 of the Children Act 1989, the judge was entitled to decline to order direct contact between F and E while E was moving placement and beginning therapy. The possibility of later direct contact remained open, and indirect contact was acknowledged.
6. Expert-instruction safeguards. The court also emphasised that the authority to obtain an expert report did not permit the parties to enlarge its scope by agreement or arrange for a child to be assessed without express court permission. This followed from Rules 25.4 and 25.8(2) of the Family Procedure Rules 2010; section 13(3) of the Children and Families Act 2014 covered the former ground of Rule 25.4 after the relevant amendment. The report was considered only to the extent authorised.

• Court of Appeal (Civil Division): On 31 July 2014, permission was granted but F’s appeal was dismissed.
• Court of Appeal (Civil Division): On 6 September 2013, an earlier appeal by the mother allowed the setting aside of N’s original placement order: [2013] EWCA Civ 1240.
• Taunton County Court: On 31 October 2013, His Honour Judge Bromilow dismissed F’s applications to discharge the care orders, made a placement order for N and declined to order contact. On 26 September 2013, he refused permission for a further report from Dr Franzen.