London Borough of Tower Hamlets v D & Ors

Permission for expert evidence or an assessment in children proceedings requires more than usefulness, reasonableness or desirability. The evidence or assessment must be necessary to assist the court to resolve the proceedings justly.

Whether that threshold is met depends on the facts. The court must actively explore realistic options for care by parents and family members, consistently with Article 8 rights, while treating the children’s welfare as paramount. Geography does not weaken that obligation. However, serious overseas risks, practical barriers, the children’s timescales and the likely value of the proposed assessment must be evaluated rigorously. Neither the preservation of family care nor avoidance of delay automatically prevails.

The London Borough of Tower Hamlets applied during care proceedings concerning two children for a decision on what further assessment, if any, should be undertaken of their father, who lived in Somaliland and wished to care for them.

The proposed assessment raised substantial safety and logistical difficulties. The local authority and children’s guardian opposed sending a social worker or independent assessor to Somaliland. The father argued that the assessment was necessary and proposed an independent social worker who was willing to travel there.

The central issues were whether the proposed expert evidence or assessment satisfied the statutory necessity threshold, how the court should evaluate overseas family-placement options, and whether alternative arrangements should be explored.

1. Statutory threshold. Under Children and Families Act 2014, s 13(6), and Family Procedure Rule 25.1, expert evidence or an assessment may be authorised only where it is necessary to assist the court to resolve the proceedings justly. “Necessary” carries its ordinary meaning and denotes what is demanded or imperative, rather than what is merely useful, reasonable or desirable. The approach in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535; [2008] 2 FLR 625 and Re H-L (Expert Evidence: Test for Permission) [2013] EWCA Civ 655 was applied.
2. The court identified three principles: opportunities should be taken to explore care by a parent; that obligation engages the child’s and parents’ Article 8 rights; and the children’s welfare remains paramount. The necessity of a comprehensive assessment remains fact-sensitive.
3. Geography does not weaken the obligation to explore family care. Overseas options must be assessed rigorously and at an early stage. The desirability of extended-family care and the avoidance of delay are both fundamental principles, and neither has automatic priority.
4. Risks such as terrorism, crime, corruption or civil unrest are relevant to the welfare evaluation under Children Act 1989, s 1(3), but will rarely be determinative alone. The care offered by the individual is the principal consideration. Here, however, the risks to an assessor, the absence of suitable international social-services provision, the practical limitations of a one-off assessment, the children’s trauma and timescales, and the lack of anticipated therapeutic support meant that an assessment in Somaliland was not necessary. The court would not authorise or encourage the proposed travel.
5. The parties and court were required to consider the real viability of alternative proposals. If the father obtained a visa and attended the hearing, the local authority should assess such material as could then properly be obtained.

First-instance decision. No prior appellate decision is stated in the judgment.