W (A Child) [2007] EWCA Civ 102

This case concerned the making of a care order in favour of a local authority in respect of a baby who had allegedly been physically and sexually abused by her father.  A medical examination by two paediatricians provided unequivocal evidence that W had been grossly anally abused.   The local authority instituted care proceedings.  A primary plank of the local authority’s case was that W had suffered serious sexual abuse in the form of anal penetration by her father either with his penis or a similarly shaped object.   The local authority initially pursued a twin track approach keeping open the prospect of rehabilitating W with her mother.  However following the receipt of a report from a psychologist, JS, which was adverse to PL, the local authority’s care plan changed to that of adoption outside the family.  The report concluded that PL did not have the capacity to properly parent her daughter. W’s parents were not married but her father had parental responsibility. He was a Schedule 1 offender who had been convicted of rape and indecent assault on young female children and had served eight years imprisonment.  PL consented to the care order being made and did not oppose the order freeing W for adoption.  W’s father was subject to a criminal prosecution in relation to sexual abuse on W, but following expert reports by two paediatricians instructed by the Crown Prosecution Service, who could find no clear evidence of abuse, the case was discontinued.

PL succeeded with an appeal against the care order, which was set aside and a re-hearing ordered, during which W was made subject of an interim care order in favour of the local authority.  The local authority was required to submit a revised document to the court in order to satisfy that the threshold criteria under s31 Children Act 1989 were established.  It submitted that W had been sexually abused by her father and as a result W had become withdrawn, depressed and engaged in sexualised play.  W had also been physically abused by being smacked by her father and it submitted that her mother had failed to protect her.  The local authority cited a number of risks such as sexual, physical and emotional harm to which W would be exposed if she were to remain with her parents.  It also submitted that PL was incapable of protecting W from harm in the future or meeting her needs and was vulnerable to abuse herself. The judge was not satisfied that the allegation of sexual abuse against W was proven (although he remained suspicious) but held that the remainder of the Local Authority’s concerns did establish that the threshold criteria has been met and went on to make a final care order in relation to W and to free her for adoption.

PL appealed against the findings of the second hearing to the Court of Appeal on four grounds, namely that the judge;

(1) found that threshold were criteria satisfied on an illogical basis
(2) had wrongly accepted parts of the evidence submitted by JS which was adverse to PL.
(3) failed to consider why W’s behaviour was never observed by her mother with whom she had frequent contact.
(4) failed to give adequate weight to the improvements made by PL since the commencement of the care proceedings.

The Court of Appeal noted that in relation to the first ground of appeal, the judge was placed in a very difficult position by the expert evidence placed before him. He had correctly found that on the balance of probabilities, W had not been sexually abused in the way maintained by the original paediatricians.  It was illogical to then find that PL had failed to protect W from harm which had been held not to have occurred.  It was not therefore open to the judge on the facts of the case to hold that the threshold criteria were satisfied on the basis that PL had failed to protect W from sexual abuse or the risk of it from her father.  The issue of physical abuse raised different issues.  The striking of a baby of eight months was unacceptable parental behaviour but a single blow as in this case, would not be enough to satisfy the first limb of s31 Children Act 1989.  Even if this conclusion was wrong the Court held that as W’s father was no longer in contact with W or her mother, the judge could not properly have made a care order.  The judge’s findings did not warrant a conclusion that the threshold criteria were satisfied or alternatively, if W did suffer significant harm that such a finding could properly result in a care order.

In relation to grounds two to four, the overriding question went to PL’s capacity to parent W.  Could the judge properly be satisfied that W was likely to suffer significant harm if returned to her mother’s care?  PL claimed that the report provided by JS was not a balanced report and that she had failed to approach the case on any basis other than W had been sexually abused.  She had not considered the positive aspects of PL’s parenting and her recent progress.  Although the trial judge was critical of JS’s evidence he still felt able to accept her evidence but gave no reasons for doing so.  The Court of Appeal found it regrettable that JS had refused to comment on the observations of Miss R, a family centre worker who had carried out a parenting capacity assessment of PL and found her to be positive about her capabilities and observed a strong emotional bond between mother and baby.  In fact her refusal to assist the court in this respect was sufficient derogation from the duty owed by an expert witness to the court to cast doubt on the objectivity and soundness of JS’s evidence.  Her evidence had carried considerable weight with other witnesses including the local authority and Guardian and in light of this, it was impossible to see the Guardian’s report as a wholly independent assessment. The Court of Appeal concluded that the trial judge had accepted JS’s evidence without exposing it to sufficiently critical analysis.  It further criticised the judge for commenting on the positive aspects of PLs progress only after he had reached his decision as to whether the threshold criteria had been satisfied.  The local authority’s case could not have been better put but it did not affect the Court’s view that the judge’s analysis of the revised threshold criteria was flawed and thus his conclusions could not stand.

Appeal allowed

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