EY (Fact-Finding Hearing)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker,Lady Justice Falk,Lord Justice Coulson |
| Judgment Date | 27 October 2023 |
| Neutral Citation | [2023] EWCA Civ 1241 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2023-001597 |
[2023] EWCA Civ 1241
Lord Justice Coulson
Lord Justice Baker
and
Lady Justice Falk
Case No: CA-2023-001597
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT WATFORD
HH Judge Richard Clarke
WD22C50066
Royal Courts of Justice
Strand, London, WC2A 2LL
Gregor Ferguson (instructed by Local Authority Solicitor) for the Appellant
Nicholas Elcombe (instructed by Norton Peskett) for the First Respondent
Amy Stout (instructed by Crane and Staples) for the Second Respondent
Rob Wilkinson (instructed by Hepburn Delaney) for the Third Respondent by their children's guardian
Hearing date: 5 September 2023
Approved Judgment
This judgment was handed down by the judges remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30am on 27 October 2023.
These care proceedings concern a young person now aged 14, whom I shall refer to as “E”. E was born a girl and given a girl's name but now identifies as non-binary and has chosen to be known by another name that reflects that status. E's preferred pronoun is “they/them”.
On 10 August 2023, at the conclusion of the final hearing of the local authority's application that E should be made subject to a care order, the judge found that the threshold criteria for making orders under s.31(2) of the Children Act 1989 were not satisfied and dismissed the application. The local authority filed a notice of appeal against this decision. On 16 August, King LJ granted permission to appeal and stayed the execution of the order pending determination of the appeal, with the consequence that the interim care order granted at an earlier stage in the proceedings remains in force. The hearing of the appeal took place on 5 September 2023. The local authority's appeal was supported by E's mother and by the children's guardian, but opposed by E's father. At the end of the appeal hearing, judgment was reserved.
Background
E has an older sister, hereafter referred to as “S”, who turned 18 in the course of these proceedings. E and their family have had a long involvement with social services dating back to before E's birth, arising initially because of concerns about the mother's mental health and parenting skills. The parents separated shortly before E was born, with S remaining in the care of her mother and having contact with her father. In 2009, when E was a few months old, an allegation was made that S had been sexually abused by her father. He was arrested and a s.47 investigation was undertaken. Professionals became concerned that S's allegations had been prompted by her mother and the police inquiry concluded with no further action. The children were placed under a child protection plan under the category of neglect. A few weeks later, S moved to live with her father, followed later in the year by E.
Thereafter the children remained with their father and had occasional contact with their mother. In the following years, there were several referrals to children's services arising out of concerns that they were being neglected. In 2017, the number of referrals increased, with particular concern being expressed about the number of visitors to the home, including some described as vulnerable young people. An allegation was made, though later retracted, that a 15-year-old girl had been raped in the property by an older male visitor. Other allegations included that the children had shared a bed with another older male, had observed adults having sex in the home, and had been permitted to spend the night with their boyfriends. In December 2017, the children were placed under a child protection plan under the category of sexual abuse. After further work with the family, the plan was stepped down to a Child in Need plan and in June 2019 the local authority closed the case.
In 2020, further referrals were made which led the local authority to undertake a further child and family assessment which concluded that safeguarding concerns were not substantiated.
In November 2021, the children's youth club reported that S had alleged that E had been slapped by their father while shopping in Asda. When spoken to by a social worker, E corroborated this allegation, and made a number of further allegations about their father's treatment of them. The local authority carried out a further assessment which concluded that the children were not at risk of physical abuse, but recommended a referral to an adolescent support service.
In the course of 2022, there were a series of further referrals including a number about sexualised statements made by E. These included a statement to their youth worker (“what would you say if I told you I shagged my Dad?”), and statements in the presence of their teacher (referring to hand sanitiser on their hand as “Daddy's cum” and making rubbing motions saying “I do this to my sister and want to do it to my girlfriend”). In June 2022, the local authority convened an Initial Child Protection Conference which decided that S and E should again be made subject to a child protection plan under the category of sexual abuse. Following the conference, the father was arrested on suspicion of sexual activity with a child and released under investigation with bail conditions to have no contact with S or E unless agreed by children's services. The two children were then placed under a police protection order. On 28 June 2022, the father agreed that they should be accommodated by the local authority under s.20 of the Children Act 1989 and they moved into foster care. On 7 August 2022, the local authority filed an application for care orders.
At the first case management hearing on 6 September, E was made subject to an interim care order. In view of her age, S remained accommodated under s.20. Prior to the hearing, the local authority had filed a schedule setting out the findings it sought in support of its case that the threshold criteria for making an order under s.31 of the Children Act 1989 were satisfied. The local authority were directed to file a number of identified statements and other documents. At a further case management hearing on 17 October before HH Judge McPhee, the parties applied for and were granted permission to instruct a clinical psychologist, Dr Omar Timberlake, to provide a global family psychological assessment of E and their father. Further directions were given, including for disclosure of documents relating to the family held by another local authority for the area where they had previously lived; disclosure by the police of relevant documents from their investigation; and narrative statements from the parents in response to evidence served by the local authority. A further case management hearing was fixed for the following month to consider inter alia “the local authority's case and the evidence it seeks to call, including proposed witnesses and any application for a child or young person to give evidence.”
In November 2022, the police closed their investigation taking no further action. On 22 November, a further case management hearing took place, again before Judge McPhee. The local authority was directed to file an amended threshold document by 25 November and the father to file a response by 23 December. The mother indicated that she did not dispute that the threshold criteria were satisfied. No application was made for E or S to give evidence. Further directions were given leading to an issues resolution hearing on 17 February 2023. On 20 January 2023, Dr Timberlake submitted his report. At the hearing in February, further directions were given leading to a final hearing in June, including an extension of time for the father to respond to the local authority's threshold document and for the preparation of a composite schedule setting out each party's case on the proposed threshold findings. On 23 March, Dr Timberlake submitted a supplemental report in response to questions posed by the parties.
The final hearing took place before HH Judge Richard Clarke over three days from 5 to 7 June. In circumstances later described by the judge in his judgment (see below), the local authority filed an amended threshold document. Only three witnesses gave oral evidence — the current social worker allocated to the family, the father, and the children's guardian. At the conclusion of the hearing, judgment was reserved. A draft judgment was sent to the parties on 20 July. No application was made by any party for clarification of the judgment. On 10 August, as stated above, the final judgment was handed down dismissing the proceedings.
Dr Timberlake's report
A central issue in the appeal involves the judge's treatment of Dr Timberlake's report. It is therefore helpful to summarise that report before considering the judgment. Regrettably, in view of the central importance of this issue to the outcome of the appeal, extensive citation from the report is unavoidable.
We were not provided with a copy of the letter of instruction, but at paragraph 2 of his report Dr Timberlake set out the questions he had been asked. They were as follows:
“The Father
(1) Please provide a psychological profile of [the father]. Please confirm the main features of his personality, including strengths and weaknesses.
(2) Are there any features in [his] general personality profile which might impact upon his capacity to form and maintain relationships, both personal and professional? If so, in what way?
(3) Are there any features in [his] general personality profile which might impact upon his ability and capacity to parent? If so, in what way?
(4) What insight does [the father] have into his children's needs and is he able to meet them and if not, what intervention is recommended and the likelihood of it being successful...
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