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Re R (A Child) [2005] EWCA Civ 1792

Appeal against the granting of a Care Order rather than a Supervision Order. Supervision Order substituted for the Care Order.

Re R (A Child) [2005] EWCA Civ 1792

Court of Appeal: Thorpe and Scott Baker LJJ (20 December 2005)

Summary
Appeal against the granting of a Care Order rather than a Supervision Order. Supervision Order substituted for the Care Order.

Background
The parties to this appeal were (1) the local authority, (2) the parents, who were separately represented, and (3) the relevant child, aged seven, who was represented by her guardian. The local authority had become involved with the proceedings in 2001, when it came to light that the child's older sister had been grossly abused sexually by her father, and care proceedings were issued to ensure that the father would remove himself from the family and would remain separately housed.

At the final hearing of the care proceedings in June 2005, there was no dispute that the threshold had been established, and the only issue was whether a care order or a supervision order should be made. The four mental health experts in the case and the guardian gave evidence supporting a supervision order, but the judge decided in favour of a care order, despite the opposition from all the parties except the applicant local authority. The judge explained the basis for her rejection of the experts' recommendation, but distinguished the guardian's position when she said 'I exclude the guardian because the guardian has great experience of legal proceedings and has legal advice'. The mother appealed.

Judgment
Held, allowing the appeal and substituting a supervision order for the care order, that the judgment was fatally flawed because it contained no explanation of why the judge had rejected the guardian's point of view, which she had implicitly recognised would require independent explanation if it were to be rejected.

The court considered that, while the experts might not be aware of the niceties of the legal consequences of a supervision order as against a care order, they were explaining to the judge that the making of a care order might have a detrimental effect on the mother's self-confidence, self-esteem and emotional well-being; that was self-evidently an area of their expertise, and their recommendation to that effect could not be finessed by saying that they were not lawyers and they did not understand legal terminology. It was a very bold thing for a judge, on a fine issue as to which label to apply, to go against the tide of all the experts in agreement as well as the guardian for the child. The obligation on a judge to explain and justify such a departure was a heavy one.

The court also expressed surprise that four experts who were in substantial agreement should have given oral evidence, rather than having a meeting of experts to emphasise the possibility of introducing their contributions sufficiently by reference only to their written reports.

Read the full text of the judgment here