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20 FEB 2007

CARE: Re W (Care: Threshold Criteria) [2007] EWCA Civ 102

(Court of Appeal; Thorpe, Dyson and Wall LJJ; 20 February 2007)

Expert evidence at first identified clear evidence of anal abuse of the young child; national experts later concluded that there was no clear evidence of abuse. In a rehearing of the care application ordered by the Court of Appeal the local authority sought to establish significant harm, relying upon anal abuse by the father, an offender under Sch 1 of the Children and Young Persons Act 1933 (a Sch 1 offender), on incidents of smacking, and on the mother's failure to protect the child, and to establish likelihood of future significant harm relying on risk of exposure to further abuse and the mother's inability to care for the child. The mother had terminated the relationship with the father and was now in a relationship with a man about whom the authority had expressed no concern. The mother had attended all the contact sessions, travelling some distance to do so; she had successfully completed an intensive parenting programme, obtained counselling and maintained contact with the community psychiatric team. The judge was not satisfied that sexual abuse had been established, but he did find that the father had smacked the child, constituting significant harm, that the mother had failed to protect the child, that there was a risk of future abuse, sexual and physical, and, relying heavily upon a report from a psychologist, that the mother was unable to care adequately for the child.

Ordering a further re-trial, the court noted that when a court found on the balance of probabilities that abuse had not taken place, it was difficult to see, as a matter of logic, how the other parent could then be held to have failed to protect the child against such abuse. None of the findings made by the judge warranted the conclusion that the child had suffered significant harm as a result of the mother's failure to protect her from sexual abuse, given that the judge had already found that the child had not been sexually abused. The mother's relationship with a Sch 1 offender might have suggested a likelihood of future significant harm, but did not do so without evidence that the mother would be likely to repeat the mistake. Although striking a child of 8 months with any blow, let alone a forceful one, was unacceptable parental behaviour, in the overall context the smacking incident was not sufficient to satisfy the threshold criteria; there was no evidence that it caused the child significant harm. In any event, physical abuse by the father could not properly have led to a care order, as the mother had terminated the relationship with the father, who had no contact with the child. There was force in the mother's criticisms of the psychologist's report; the judge had placed undue reliance on the expert's evidence and had not weighed properly the many positive factors in the mother's case. It was particularly regrettable and surprising that the expert had not been prepared to assist the judge by commenting on what others had observed; this was a sufficient derogation from the basic duty owed by an expert witness to cast doubt on the objectivity and soundness of the expert's evidence.

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