K & KT (Children)

In care proceedings, experts may assess family members before the court has resolved historical allegations. They may rely on substantial records and take account of disputed material, provided the judge understands the disputes and reaches an independent evaluation. The judge must decide the children’s future welfare and the relatives’ capacity to care for them. The judge must not simply adopt the recommendations of experts or the guardian. An appeal based on alleged procedural irregularity requires more than showing that an expert or guardian expressed an imperfect view. The irregularity and its material effect on the validity of the decision must be established. Unproved allegations may still be relevant where the judge makes reliable findings about the family’s emotional climate and parenting. The appeal was dismissed.

Four children were the subject of long-running care proceedings after one child suffered a non-accidental fracture. The judge made full care orders and authorised the local authority to place all four children for adoption. The maternal grandparents appealed, alleging procedural unfairness in the preparation and handling of expert evidence.

The grounds concerned alleged pre-assessment briefings, an alleged instruction by the children’s guardian to a psychologist, a possible discussion between jointly instructed experts before they gave evidence, the guardian’s opinions on matters outside his expertise, and reliance on historical allegations of abuse which had not all been proved. The central issue was whether those matters undermined the fairness or essential validity of the judge’s welfare evaluation.

1. Appeal dismissed. None of the five grounds established an error sufficient to undermine the care and adoption orders.
2. Experts in care proceedings are commonly instructed before the court determines disputed historical allegations. An expert may sensibly rely on substantial records and recognise that factual disputes remain unresolved. The expert may reach conclusions which do not depend on proof of every allegation, including allegations of physical abuse.
3. The judge must make his own assessment of the evidence and the children’s future welfare, including the ability of relatives to provide safe and stable care. The judge did so here and did not merely endorse the guardian’s or experts’ recommendations.
4. The fact that some historical allegations were unproved did not require the whole body of material to be ignored. The judge was entitled to make reliable findings about the family’s emotional climate, authoritarian and harsh parenting, and its effects, while remaining cautious about allegations that he could not resolve.
5. The evidence did not establish that the social worker or guardian improperly briefed the experts. There may have been an informal conversation between the experts before they gave evidence, but the evidence did not show that the case was discussed inappropriately or that the conversation caused the change in the social worker’s recommendation. Her revised view was explained by her consideration of the psychologist’s report and clarification of her own assessment.
6. The guardian may have been ill-advised to express views based on medical or pharmaceutical matters outside his professional expertise. However, the issue was fully ventilated before the judge and did not infect his judgment. The decision was based on the evidence the judge had heard and evaluated himself.

• Court of Appeal (Civil Division): [2014] EWCA Civ 1211. Appeal from the Bournemouth County Court dismissed.
• Bournemouth County Court: HHJ Meston QC made full care orders for the four children and authorised the local authority to place them for adoption.