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W (A Child) [2005] EWCA Civ 649

Appeal allowed against dismissal of application for a care order, contrary to unanimous expert evidence.

Re W (A Child) [2005] EWCA Civ 649

Court of Appeal: Thorpe and Wall LJJ (26 May 2005)

Appeal allowed against dismissal of application for a care order, contrary to unanimous expert evidence.

This appeal concerned a child born in September 2000, the eldest of four children born to his mother by four different fathers. The local authority had applied for a care order, recommending that the child be placed for adoption outside the family. On the particular facts of the case, this meant: (1) that he had to be removed immediately from the home of his mother's younger sister where he had been left by his mother in April 2004 (and where he had been living ever since); (2) that he should then be placed with short-term, specialist foster parents; and (3) that he would then be moved into a permanent, adoptive placement as soon as suitable prospective adopters could be identified. The reason why two moves were required was that the aunt was not prepared to contemplate or assist in the child's move to an adoptive placement.

Having heard extensive details of the family's deprived and abusive history, assessments of the child's current situation and attachment to his aunt, and expert evidence as to his psychological state and future needs, the judge – acknowledging that this was a difficult and finely balanced case – refused to make the care order; instead, she made an interim order that the child reside with his aunt, and an interim supervision order directed to the (different) local authority for the area in which the aunt lived.

The local authority appealed on the grounds that the judge had failed to follow unanimous expert evidence to the effect that the aunt, however well-meaning, simply did not have the capacity to care in the long term for such a damaged child; moreover, the judge had failed to explain why she had not followed the expert evidence that she heard. For the aunt, it was argued that the judge was entitled to take the view that the risks involved in removing the child from his placement with his aunt, where he had made progress and which represented the only stable home he had known, outweighed the risks inherent in leaving him where he was.

Held, allowing the appeal and setting the judge's order aside, that the judge had disagreed with the analysis of two psychiatric experts and the views of the guardian, and had wholly failed to explain the basis on which she rejected such evidence.

As to the consequences of allowing the appeal, it was not appropriate for the court to impose the option that the judge had rejected; the judge would be given the opportunity to reconsider her decision in the light of the Court of Appeal's judgment and of a further investigation by one of the experts and the guardian.

Read the full text of the judgment here