EY (Fact-finding hearing), Re

In care proceedings, the Children Act 1989 section 31(2) threshold must be assessed at the relevant date. Past and recent facts must be evaluated together, including whether they establish a real possibility of future significant harm. An expert report is not automatically accepted merely because the expert was not cross-examined; the court must assess it against the whole evidence. Historic matters may remain relevant when later developments are considered. A judge may make findings beyond the threshold document where they fall within the known parameters of the case, but must preserve fairness through adequate notice and opportunity to respond.

These care proceedings concerned E, a 14-year-old child who identified as non-binary. The local authority alleged that E had suffered, or was likely to suffer, significant harm because of their father’s care. Following a three-day fact-finding hearing, HH Judge Richard Clarke dismissed the application after making limited historic findings, including findings concerning inappropriate sexual material and conduct, but finding no proved significant harm attributable to the father’s care.

The local authority appealed. E’s mother and the children’s guardian supported the appeal, while the father opposed it. The central issues were the treatment of the expert psychological evidence, whether the findings had been evaluated cumulatively, and whether the judge had erred in declining to make further findings outside the threshold document.

1. Disposition. The appeal was allowed on grounds 1 and 2. Ground 6 was dismissed. The remaining grounds, which challenged the evaluation of individual items of evidence, were not considered because the matter required a fresh fact-finding hearing. The case was remitted for reallocation, further case management and a retrial.
2. Expert evidence. A trial judge must evaluate an expert report in the context of the totality of the evidence. The judge is not required to accept expert conclusions merely because the expert was not called for cross-examination. The Court did not need to resolve the unsettled issue whether expert evidence may be challenged for the first time in closing submissions. The judge had nevertheless erred by misunderstanding the scope of Dr Timberlake’s court-approved instructions, wrongly criticising him for investigating matters relevant to fact-finding, treating his opinion as based only on the local authority’s case, and failing to engage adequately with his analysis of harm and future risk.
3. Section 31 threshold. Under section 31(2) of the Children Act 1989, the question was whether, at the date proceedings began, E was suffering or was likely to suffer significant harm because the care given or likely to be given by the father was below the standard reasonably expected of a parent. Findings of future risk had to be based on facts established on the balance of probabilities. The judge was entitled to reject unproved allegations, but erred in disregarding historic findings and in failing to assess the established facts cumulatively and alongside Dr Timberlake’s evidence. Those matters were capable of establishing a pattern of risk arising from inadequate boundaries and supervision.
4. Findings outside the threshold document. In care proceedings the judge must scrutinise the issues and findings sought. Findings beyond the document may be made where they fall within the known parameters of the case, are securely founded on evidence, and can be answered fairly by the parties. The judge was entitled to make a finding that E had seen intimate images of the father because that issue was within the known parameters and had been admitted. He was not obliged to identify further findings which the local authority had never particularised or asked him to make.

• Court of Appeal (Civil Division) — Allowed the appeal on grounds 1 and 2, dismissed ground 6, declined to determine the remaining evidential grounds, and remitted the matter for a further case management hearing and fact-finding hearing.
• Family Court at Watford — HH Judge Richard Clarke dismissed the local authority’s application for a care order in case WD22C50066 after making limited findings but concluding that the section 31 threshold was not established.