Neutral Citation Number: [2007] EWCA Civ 102
Case No: B4/2006/2471
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HHJ ONIONS
WOLVERHAMPTON COUNTY COURT
WV05C00261
Royal Courts of Justice
Strand, London, WC2A 2LL

Tuesday 20th February 2007
Before :

LORD JUSTICE THORPE
LORD JUSTICE DYSON
and
LORD JUSTICE WALL
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W (A Child)
Between :

	PL - The Mother	Appellant	
	- and -		
	THE LOCAL AUTHORITY
And
AW – The Father
And
KW (A Child acting by the Child’s Guardian)	1st Respondent

2ndRespondent

3rdRespondent	

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Michael Keehan QC and Elizabeth Isaacs (instructed by Messrs Sydney Mitchell - Solicitors) for the Appellant
Richard Anelay QC (instructed by Local Authority) for the 1st Respondent
The 2nd Respondent was not represented and did not appear in person
Paul Lopez (instructed by Baches Solicitors) for the 3rd Respondent

Hearing date : 14th February 2007
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Judgment
Lord Justice Wall :
Introduction 
1.	This is the judgment of the court.
2.	On 14 February 2007, at the conclusion of the argument, we announced our decision, namely that; 
(1)	permission to appeal would be granted; 
(2)	the appeal would be allowed; 
(3)	paragraphs 1,2, 3 and 6 of the order made by the judge on 31 October 2006 would be set aside; 
(4)	there would be substituted, in place of the care order made by the judge,  an interim care order under section 38(2) of the Children Act 1989 in relation to the child KW in favour of the local authority;
(5)	the local authority’s application for a care order in relation to KW would be transferred to the High Court and re-heard by a High Court judge of the Family Division to be allocated  by the Family Division Liaison Judge for the Midland Circuit, McFarlane J, in consultation with the President of the Family Division; and 
(6)	the local authority’s application would be listed for directions before McFarlane J sitting in Birmingham  on 21, 22 or 23 February 2007 with a time estimate of one hour.
3.	We reserved the reasons for our decision, which we indicated would be handed down on 20 February 2007, and which we now give.  We also directed that reporting restrictions should apply to the case. This judgment is, accordingly, written anonymously, and nothing must be published which in any way identifies the child in question or any of the parties. 
4.	This case has a singularly unfortunate procedural history. The child concerned, KW,  is a girl born on 22 June 2004.  The local authority instituted care proceedings relating to KW as long ago as May 2005, when she was removed from her parents’ care following an anonymous telephone call to the local authority alleging that her mother was not coping with her. Following her receipt into care, KW was medically examined by two local paediatricians, whose evidence, whilst mutually contradictory in certain respects, was unequivocal  in its conclusion that  she had been grossly anally abused. Accordingly, in the care proceedings, a primary plank of the local authority’s case was that KW had suffered serious sexual abuse in the form of anal penetration by her father, either with his penis or a similarly shaped object. 
5.	The local authority initially pursued a twin track approach, keeping open the prospect of rehabilitating KW with her mother.  However, following the receipt of a report from a psychologist, whom we will identify only by initials (JS) in December 2005, which was adverse to the mother, the local authority’s  care plan changed to that of adoption outside the family.
6.	When the case came on for final hearing on 14 February 2006, KW’s mother was thus faced with a clear diagnosis that her child had been seriously sexual abused whilst in her care, and with a psychologist’s report which came down firmly against her having the capacity properly to parent KW.  In these circumstances, the mother both consented to a care order being made and did not oppose an order freeing KW for adoption.  Both orders were made by Her Honour Judge Hughes on the same day. The local authority had identified prospective adopters, and the mother had a “farewell” contact with KW on 9 March 2006. She has not seen KW since.
7.	KW’s parents were not married, but her father had parental responsibility for her. He is a Schedule 1 offender, who had been convicted of rape and indecent assault on young female children in 1989. For this crime, he had been sentenced to eight years imprisonment.  The mother, who had not been aware of the father’s history, and had taken no steps to find out about it, terminated her relationship with the father when she learned of his history from the local authority.
8.	In addition to the care proceedings, the father was the subject of a criminal prosecution in relation to the same alleged acts of abuse.  During the course of the criminal proceedings, the Crown Prosecution Service placed the reports of the two paediatricians who had diagnosed the sexual abuse of KW before other, national, experts.  The result was dramatic. The two further doctors consulted reached the opposite conclusion, namely that there was no clear evidence of abuse. The result was the abandonment of the prosecution, and, in June 2006, the release of the two later reports to the mother’s solicitors. 
9.	As it happened, KW had not by that date been placed with prospective adopters, and was still with the foster carers with whom she had been living continuously since May 2005.  On 10 August 2006, the mother filed her appellant’s notice seeking permission to appeal against the orders made on 14 February 2006, and an extension of time in which to do so.  On 1 September 2006 those applications came before this court in a constitution comprising Mummery and Wilson LJJ.  The leading judgment was given by the latter [2006] EWCA (Civ) 1269. The mother succeeded. Permission to appeal and an extension of time in which to do so were both given. The appeal was allowed. The care order and the order freeing KW for adoption were set aside; the substantive applications were remitted to the county court for re-hearing over a period of four days commencing on 16 October 2006. KW was made the subject of an interim care order in favour of the local authority, and this court gave detailed directions for the new trial, including the provision by the local authority of a revised document identifying the facts and matters upon which it would be relying in order to satisfy the court that the threshold criteria under section 31 of the Children Act 1989 (CA 1989) had been established. Provision was also made for the guardian to file an addendum report by 9 October, and for instructions to be sent to JS in order for the latter to file an addendum report no later than 3 October 2006.
10.	The re-hearing of the local authority’s applications duly began before His Honour Judge Onions on 16 October 2006. It lasted five days, and the judge delivered his reserved judgment on 31 October 2006.  He found the threshold criteria under section 31 of CA 1989 established; and he went on both to make a final care order in relation to KW and to free her for adoption.  It is against these orders which the mother seeks to appeal.
11.	The only other factual event which requires to be noted is that the prospective adopters identified by the local authority after the hearing before HH Judge Hughes have withdrawn. There are no other prospective adopters currently identified as a match for KW, and we were told that the local authority intended, in due course, to place KW’s details in the well-known publication “Be my parent”.
The revised threshold criteria document
12.	Although the threshold criteria under section 31(2) of CA 1989 are well known, we propose to set them out at this point. 
(2)	A court may only make a care order or supervision order if it is satisfied—
(a)	that the child concerned is suffering, or is likely to suffer, significant harm; and
(b)	that the harm, or likelihood of harm, is attributable to—
(i)	the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
(ii)	the child’s being beyond parental control.
13.	The burden of proving that the threshold criteria under CA 1989 section 31(2) are satisfied lies on the local authority. The leading case on the point is Re H (minors) (sexual abuse: standard of proof) [1996] AC 563 (Re H). in which the leading speech for the majority was given by Lord Nicholls of Birkenhead.  We do not propose to set out the principles to be derived from his speech, which are well known. 
14.	For present purposes, all we need to record is that it is necessary for a local authority to set out in writing the basis upon which it seeks to persuade the court that the threshold criteria are satisfied. In the instant case, the revised threshold criteria document produced by the local authority pursuant to this court’s order was settled by leading counsel shortly after the hearing on 1 September 2006.  It is an important document, and we propose to set it out in full. It identified the relevant date for the purposes of CA 1989, section 31(2) as being 23 May 2005, when the local authority initiated arrangements to protect KW. The local authority sought to establish that at that date KW was suffering significant harm (the first limb of section 31(2) in three respects, and further that she was likely to suffer significant harm (the second limb of section 31(2) in a further four respects. For ease of reference, we have numbered the allegations consecutively.
(1)	on a date prior to 24 May 2005, she had been sexually abused by her father (the Second Respondent) in that he had penetrated her anus with his penis or similarly shaped object as a result of which she had anal fissures and a markedly abnormal dilated anus. As a result of this sexual abuse, the child was observed to be in a frozen state when she was first placed with her foster carer and was later observed to be depressed, at times inconsolable and to display extreme temper tantrums.  She also engaged in sexualised play when she threw herself on the floor in the midst of a tantrum and made rhythmic and sexualised movements.
(2)	At the age of about 8 months, she had been physically abused by her father when he had violently and unnecessarily smacked her across the nappy area.
(3)	her mother (the First Respondent) had failed adequately or at all to protect her from the alleged sexual and/or physical abuse.
At  the relevant date it was asserted that KW  was likely to suffer significant harm in that:
(4)	She was at risk of being sexually abused by her father if she remained in his care or in contact with him because in 1989 he had been convicted of two offences of rape and indecent assault of a female under the age of 14 years for which he had been sentenced to 8 years imprisonment.
(5)	Her mother had exposed her to the risk of sexual abuse by her father who was a man whose background her mother did not know and into which her mother had not inquired adequately or at all.  Her mother had failed and was likely to fail to protect her against such risk.
(6)	She was at risk of being physically abused by her father and consequent physical injury.
(7)	Her mother was unlikely to be able adequately and/or safely to care for her for the following reasons:-
(i)	she was and is a highly dependent personality and is highly vulnerable;
(ii)		she had and has borderline intellectual ability;
(iii)	she had a history of depression and in January 2003 had made two suicide attempts and had threatened her brother with a kitchen knife;
(iv)	she was and is unlikely to be able to prioritise her child’s safety, welfare and needs above her own superordinate needs to maintain an intimate adult relationship at almost any cost;
(v)	she had and has limited cognitive abilities and serious psychological difficulties which undermine her capacity to meet her child’s future needs including safety and protective measures;
(vi)	she was and is unable to meet her child’s likely complex future needs.
In support of the matters et out in paragraph 7 (i) to (vi) above, the Local Authority will rely upon the contents of a psychological report upon the mother by JS dated 21 December 2005.

The judge’s findings on the threshold criteria in outline
15.	So far as the alleged sexual abuse suffered by KW is concerned, the judge carefully examined the evidence, heard from all four doctors and. applying the test enunciated by Lord Nicholls in his speech for the majority in Re H, was not satisfied that  KW had been the subject of sexual abuse by her father. It follows that paragraph 1 of the revised threshold criteria document could not and did not form part of the threshold criteria for the purposes of section 31, CA 1989.  There is no cross-notice of appeal or respondent’s notice by the local authority in relation to this finding, which it accepts. KW’s guardian did not take a position on the sexual abuse question.  In our judgment, therefore, this issue must be regarded as determined in the parents’ favour, and should not form part of the re-hearing, unless for some good reason unknown to us, the judge who conducts the re-hearing is persuaded that he should allow it to be re-opened.  
16.	In relation to item 2, the judge found that the father had smacked KW as alleged, and that this constituted significant harm. The Judge also found paragraph 3 established.  As to the likelihood of significant harm, the judge found items 4 – 7 all made out. He held, accordingly, that the threshold criteria were satisfied.  As to final outcome, he came to the view, basing himself largely on the evidence of JS, that the mother lacked the capacity to parent KW; that there should, accordingly, be a care order, and that KW should be freed for adoption. In so doing, he dispensed with the mother’s agreement as being unreasonably withheld. KW’s father had played no part in the proceedings. 
The mother’s grounds of appeal, and the case for the appellant
17.	Four grounds of appeal are relied upon by Mr Michael Keehan QC and Ms Elizabeth Isaacs for the mother. They are as follows: -
Ground 1
The judge found the threshold criteria satisfied on an illogical basis which was against the weight of the evidence:
(a)	having found the allegation of sexual abuse of the child not proved, the judge wrongly found the mother had failed to protect the child from sexual abuse;
(b)	he wrongly found the child had suffered significant harm on the basis of the mother’s inability to protect the child from sexual abuse, which the judge had not found proved; 
(c)	on the basis the father smacked the child once and the mother had smacked the child on the hand, the judge wrongly found the same constituted significant harm; and
(d)	the judge wrongly found the mother would be physically abusive to the child at times of stress in the absence of any evidence in support of the same.
Ground 2
Contrary to relevant findings made by the judge and notwithstanding his rejection of material aspects of her evidence, he wrongly accepted those parts of the evidence of the psychologist, JS, which were adverse to the mother.
Ground 3
The judge failed to take into account or consider why the child’s bizarre and worrying behaviour as described by the foster mother was:
(a)	never observed when the mother enjoyed regular and frequent contact with the child; 
(b)	had only appeared some months after the child had been received into care;
(c)	there was no satisfactory explanation for the behaviours; and 
(d) 	the professionals thought the matter merited further investigation.
Ground 4
The judge failed to accord any or any adequate weight in his ultimate analysis of the case to the acknowledged improvements made by the mother since the commencement of the care proceedings.
18.	Although inviting us to find that the judge had been wrong to hold that the threshold criteria under CA 1989 section 31 were satisfied on the evidence before him, Mr Keehan, did not seek to persuade us that, as a consequence, the care proceedings should be dismissed and KW immediately returned to the care of her mother. His submission was that the care and freeing orders made by the judge should be set aside; that the local authority’s applications should be transferred to the High Court and remitted for re-hearing. They should be listed before McFarlane J, the FDLJ for the Midland Circuit at the first available date for urgent directions. 
19.	If we were to take this course, Mr. Keehan invited us to grant the mother permission to instruct; (1) an independent social worker to undertake an assessment of her ability to parent KW; and (2) a consultant paediatric neurologist to undertake an assessment of KW’s development and mobility.  He accepted that this would require there to be an interim care order in favour of the local authority, and implicitly accepted  that the criteria for such an order as set out in CA 1989, section 38(2) were made out. He also acknowledged that this course would add further delay to proceedings which had  already extended  well beyond the time-limits envisaged in the Protocol for Judicial Case Management in Public Law Children Act Cases [2003] 2 FLR 719 (the Protocol), and would mean that KW’s future would remain undecided for a further period.
20.	For the local authority, Mr. Richard Anelay QC accepted that if, contrary to his submissions, the appeal was to be allowed, remission to the High Court under the aegis of an interim order was the right approach. In such circumstances, KW would continue to live with her foster parents pending the re-hearing. 
21.	For the reasons which follow, we take the view that Mr. Keehan was right not to invite us to dismiss the proceedings were we to find that the judge was in error in holding the threshold criteria set out in the revised document under CA 1989 section 31 satisfied.  We agree that the criteria for an interim care order are satisfied, and that further investigations of the kind envisaged by Mr. Keehan are required. We came to the conclusion, however, that the directions for the re-hearing should all be given by McFarlane J and (if not McFarlane J himself) by the judge allocated to take the rehearing, and not by this court.
The judge’s approach to the revised threshold criteria document tested against the grounds of appeal 
22.	As we find ourselves in disagreement with the judge, we think it only right, before embarking on our analysis of his judgment, both to make it clear that we regard this as an extremely difficult case, and to express our recognition  of the obvious care which the judge devoted to it.  In our view the judge was placed in a very difficult position by the expert evidence placed before him, particularly as it emanated from the psychologist, JS.
23.	We also need to make the point that, as the local authority’s applications are to be re-heard, this judgment is limited to an analysis of the judgment in the court below, and that nothing in what follows is to be taken as any indication of our views as to the likely outcome of that re-hearing.  The shape of the re-hearing, the evidence to be called at it and its ultimate outcome will be matters exclusively for the court at first instance. The only marker we put down is that, on the material available to us, we take view that the allegations of sexual abuse should not be re-opened.
24.	What we propose to do, both in the interests of time and in order to assist McFarlane J in giving directions later in this week, is to test each of Mr. Keehan’s grounds of appeal against the revised threshold criteria document and what the judge says in the judgment in relation to each of the paragraphs of the latter document.
The first ground of appeal
25.	The first 53 paragraphs of the judge’s judgment are taken up with a careful recital of the material history, his identification of the issues he is required to resolve, and a careful examination of the medical evidence relating to sexual abuse. In paragraphs 53 and 54, the judge expresses himself in the following terms: -
53. Having reviewed the medical evidence and the other evidence which has been produced before me I have come to the conclusion that I am not satisfied that K was sexually abused by repeated penile or other penetration.  The evidence of Dr R and Dr C (the local paediatricians) conflicts on important points and when I consider the evidence of Dr M and Dr RR (the doctors instructed by the CPS) I am forced to the conclusion that I cannot be satisfied on the balance of probabilities that K was abused in the way maintained by Dr R and Dr C.  Secondly, however, I remain highly suspicious that she was so abused and I cannot exclude this as a real possibility.  This finding is important in the context of any potential finding that the mother failed to protect the child.  I am suspicious because of the involvement of the father, a known sexual abuser, the mother’s own expressed concerns and the behaviour of the child.

54. I turn now to the second main ground in the threshold criteria which is that of physical abuse.  This concerned evidence that at about eight months the father hit the child whilst the child was wearing a nappy.  The mother told me that she did not approve this and made that clear in forceful terms to the father.  That evidence was seriously undermined by the mother with mother’s acceptance that she herself hit the child.  She described it as tapping but accepted that the tapping was hard enough to be felt by the child.  The mother said that she did this because KW was naughty and that she did so at times of stress when for example the baby was crying.
26.	In our judgment, the judge was plainly entitled on the evidence presented to him to find as a fact that paragraph 1 of the revised threshold criteria document was not established, and that paragraph 2 was. We will return in a moment to the question of whether a finding that paragraph 2 was made out could properly result in the threshold criteria being satisfied. Our immediate concern is with the judge’s finding that paragraph 3 of the revised threshold criteria document was established. 
27.	A finding of fact in care proceedings that a child has not been sexually abused by the parent accused of doing so  gives  rise to an obvious trap for the unwary.  In situations where one parent is found to have sexually abused a child (and the other has not), the latter is frequently held to have failed to protect the child against the abuse in question. But where the court (as here) finds that, on the balance of probabilities,  the abuse has not taken place,  it is difficult to see, as a matter of logic, how the other parent can be held to have failed to protect the child against something which the court has found did not  occur. 
28.	In ground 1(a) of his grounds of appeal, Mr Keehan submits that the judge has fallen into precisely this trap.  The clear judicial finding was that KW had not suffered significant harm due to sexual abuse. It follows, Mr. Keehan argued,  that the mother could not be found to have failed to protect KW against the very form of significant harm which the judge found had not occurred.
29.	The seeds for the judge’s error, Mr Keehan argues, are sown in the final three sentences of paragraph 53 of the judgment, which we have set out above. The judge then prefaces his further findings in relation to paragraph 3 of the revised threshold criteria document by reminding himself that he was not satisfied that sexual abuse had taken place. He adds, however, that “there are real areas of concern here, and continues: -
58. The mother I find failed to protect K as she should have done if KW’s interest had remained in the forefront of her mind and had received appropriate and proper priority from the mother.  In particular the mother’s desire to have a relationship with the father blinded her to obvious areas of real concern and matters which should have put her on active enquiry.  Firstly, the father did not want K to have his surname, although the child was in fact registered with the father as Mr W.  He has claimed this, that social services would be on his back.  The question that cries out is “Why?”, and the mother should have asked those questions and pursued them with vigour.  Secondly, he gave a similar explanation when claiming he did not want to give his name at the hospital.  He was asked to take a simple blood test when mother was pregnant but was markedly reluctant to do so.  The question again cries out “Why? What was he hiding?”  Thirdly, the mother was told by paternal grandmother that the father had been accused of “messing” with children.  This should have caused the mother to stand back and to make searching enquiry.  She on the evidence effectively did nothing.  Fourthly, the father would not change a nappy in case he was accused of doing something to the child.  Again the question shouts out “Why? Is it not normal for a father to change the nappy of a child, whether that child is male or female?” And the fact that this father did not and gave that reason demanded enquiry.  Fifthly, the mother suspected abuse and she told the guardian this.  The mother rightly said the abuse was not her fault but when she suspected the abuse had started the mother took the child to the doctor on three separate occasions.  The mother even showed the guardian the medication.  The mother tellingly never told the doctor she suspected abuse and never removed the child from the risk of abuse.  She could have done so by leaving the father or ensuring that the father was never alone with the child, but she did not take even those small and practical steps.

59. It is difficult to say when the mother became suspicious but certainly by eight or nine months after the child was born I am sure that the mother was worried about abuse.  The fact that she never protected the child at this stage was a serious failure.  She in my view and my finding placed greater emphasis on the continued relationship with the suspected abuser that the protection of her own child.

60. I am therefore satisfied that on the date of intervention of the 23rd May 2005 the child was suffering significant harm under section 31 of the Children Act due to (a) the physical abuse of the child by both parents and (b) the failure of the mother to adequately or at all protect the child from the possibility of alleged physical or sexual abuse. 
30.	Dealing firstly with the finding that the mother failed to protect KW from sexual abuse, we are of the view that none of the findings made by the judge warrant the conclusion that at the date of the local authority’s intervention in May 2005, KW was suffering significant harm due to her mother’s failure to protect her from sexual abuse. To reach such a conclusion the judge would have had to find that KW had been sexually abused. He found that she had not. 
31.	In our judgment, the judge’s conclusion in paragraph 60 of his judgment that KW was suffering significant harm in May 2005 due to the mother’s failure to protect her from the risk of sexual abuse demonstrates a confusion between the two limbs of CA 1989 section 31.  It might well be arguable that the mother’s failures as found by the judge went to the likelihood of future significant harm. Thus the fact that she formed a relationship with the child’s father, who is a schedule 1 offender, without making any enquiries about him; and that she shut her mind to questions which ought reasonably to have given her concern about him (or which, at the very least, should have given her pause for thought) might well be prayed in aid in advancing the proposition that she could in the future form another such relationship and so put her child at risk of abuse by another partner. These matters cannot, however, in our judgment, be prayed in aid of a finding that at the relevant date KW was suffering significant harm. 
32.	Even on this basis, however, the likelihood of significant future harm seems to us to rest on a very slender evidential foundation. The judge would have had to have found a real risk that the mother would forge a future relationship with another child abuser. There was no evidence that she would be likely to do this, and certainly nobody in the case suggested that her present partner, Mr. S was an abuser.
33.	We hasten to add that the distinction between the two limbs of CA 1989 section 31(2) is not academic. It has frequently been said that care orders are at the extremity of the court’s powers. The permanent removal of children from their parents’ care thus requires a careful adherence by the courts and the local authorities to the criteria which have been laid down by Parliament for the exercise of those powers: - see, in this context, the speech of Lord Nicholls of Birkenhead in Re H, in particular at pp 592F-G to H.
34.	We therefore agree with Mr Keehan that  it was not open to the judge on the facts of this case, to hold that the threshold criteria were satisfied on the basis that the mother had failed to protect KW from sexual abuse (or from the risk of it) by the father.
35.	The question of the physical abuse of KW raises other, different, issues. In the first place, we take the view that the judge was plainly right to reject Mr. Keehan’s submission that the local authority could not rely on the mother’s evidence that she had hit KW, because that allegation did not appear in the revised threshold criteria document. Subject to any ECHR Article 6 considerations, or any question of unfairness, the court must be entitled to rely on evidence which goes to the establishment of the threshold criteria, and is not limited to those matters which are known to the local authority at the time it institutes proceedings: - see the recent decision of this court in Re L (children) (care proceedings) [2006] 3 FCR 301, 316 at paragraph 42. To hold differently would be to undermine a critical aspect of child protection. 
36.	As to the physical abuse by the father, there is an inconsistency in the judgment in that in paragraph 54 the judge makes a finding that the father struck the child on one occasion. However, in paragraph 131 he records and appears to accept the mother’s evidence that the father smacked KW on other occasions. 
37.	Were this case to turn on the father’s physical abuse of KW, there would, no doubt, have been a more careful examination of the father’s physical assaults on the child. Plainly, on any view, striking a baby of eight months with any blow, let alone a forceful one, is unacceptable parental behaviour. We have to say, however, that in the overall context of the issues raised in this case, we do not think that, of itself,  a single blow by the father (or even more than one blow) would be sufficient to satisfy the threshold criteria under the first limb of CA 1989, section 31. There is no evidence that it caused the child significant harm. But even if that conclusion is wrong, and the physical harm inflicted on KW by the father amounted to significant harm within the first limb of CA 1989 section 31(2), we are satisfied that the father’s conduct in relation to physical abuse could not properly have led the judge to make a care order in relation to KW. The mother had terminated her relationship with him. He was “off the scene”. He had taken no part in the hearing before the judge. No question of his contact with the child arose. 
38.	In these circumstances, we do not think that, on the facts of this case, the judge’s findings about the father’s violence to the child warranted a conclusion either that the threshold criteria under the first limb of CA 1989 section 31 were satisfied; alternatively, if KW did suffer significant harm as a result, that such a finding could properly result in a care order.
39.	As to the mother’s inability to protect KW from her father’s violence this, in our judgment, goes more to the likelihood of significant harm.  Once again, there was no evidence that KW had suffered significant harm from being struck. The parents had separated. If the mother was unable to protect her daughter from being struck by the child’s father, the question, which, we think, arises, is:  would KW be likely to suffer significant harm in the future as a consequence of the mother’s inability to protect her from assaults by a different partner? We will return to this issue in due course.
40.	Finally, the mother’s own violence to the child is, of course, unacceptable parental behaviour. There is, however, no evidence that it caused KW significant harm.  Once again, therefore, we think this evidence goes to likelihood of future harm, rather than a state of significant harm existing at the date the local authority instituted its protective measures.
41.	In our judgment, therefore, Mr. Keehan is entitled to succeed on his first ground of appeal.
Grounds 2 to 4 of the appellant’s notice
42.	Our acceptance of the fact that Mr Keehan is entitled to succeed on ground 1 does not, however, mean that the appeal must be allowed.  We thus turn to grounds 2 to 4, and, in particular, to paragraphs 4 to 7 of the revised threshold criteria document which give rise to the critical issues in the case. The overriding question, in our judgment, goes to the mother’s capacity to parent KW.  Could the judge properly be satisfied that KW was likely to suffer significant harm if returned to her mother’s care?
43.	On this limb of the case, Mr Keehan is roundly critical of the evidence given by JS and by the judge’s acceptance of it.  In paragraphs 30 and 31 of his skeleton argument, he does not mince his words:-
30. The evidence and report of JS was flawed for the following reasons:

(a)	her observation of the manner in which KW threw herself to the floor and moved up and down is unique and is not reported by any other witness;

(b)	her readiness to assert that the only explanation for this single isolated incident of ‘sexualised behaviour’ is that the child has been sexually abused is incredible and troubling. It calls into question the extent to which the court may or should rely upon her evidence;

(c)	she fails to approach this case on any basis other than KW has been sexually abused;

(d)	her assessment of the mother that she would be unable to protect KW based on the mother’s response to tend to her dying (but previously abusive) father is confused, irrational and bizarre;

(e)	the assessment of the mother’s parenting capacity, and her deficits, is principally and primarily based on psychometric testing;

(f)	she fails, and refuses, to take account of contrary and contradictory evidence (e.g. the parenting assessment conducted by HR);

(g)	she asserts the mother would not cope with stress but  failed to give any real credit for the manner in which the mother coped with the enormous stress of the final contact visit in March 2006;

(h)	she failed and fails to take account of or consider the following matters in the mother’s favour:

(i)	the extremely positive contact sessions;

(ii)	the close relationship between mother and daughter;

(iii)	the mother’s swift decision to end her relationship with (the father); 

(iv)	the fact that the mother survived without being in a relationship from May 2005 to April 2006; and

(v)	she failed to record all conversations held with professionals and destroyed notes of conversations within a very short time of the February ‘final’ hearing.

31.The judge found that JS was dogmatic in her evidence, she was defensive in cross-examination, she gave the impression of being disturbed to be questioned so closely such that he was concerned. He criticised her for relying solely on her own observations of KW’s attachment to her mother and would not consider the observations of other professionals which she should have done so: - see the judgment at paragraphs 94-95. Notwithstanding those observations,  the judge felt able to accept the evidence of JS but gave no reasons (or compensating factors) for so doing.

44.	We think there is force in a number of these criticisms, and that JS, despite her obvious experience and expertise did not give the judge the help he required. We are particularly struck by an observation made by the judge in paragraph 94 of his judgment: -
94. JS saw no evidence of a secure attachment between mother and child.  She was not going to comment on what Miss R had observed.   I regret this.  I think JS should have been prepared to assist the court by commenting on areas of evidence that were not supported by other professionals.  JS seemed only to be prepared to rely on matters that she herself saw or observations that she herself carried out.
45.	Miss R was the family centre worker, who had carried out a parenting capacity assessment of the mother and had supervised the mother’s contact with KW. Her report, which is dated 10 August 2005, is extremely positive. For example, she stated:- 
Throughout the observations made within the contact sessions, it is clearly evident that there is a very strong emotional bond already formed between (the mother) and KW. I have witnessed there to be a plentiful supply of cuddles between them.
46.	We find it both regrettable and surprising that JS was not prepared to assist the judge by commenting on what Miss R had observed. The basic function of an expert witness is to advise the court on matters which are within the expertise of the witness and outwith the expertise of the judge. The judge has to make findings of fact, and to draw inferences from the facts found.  The task of experts is to assist  judges in that process, not by telling them what the facts are or should be, but by giving them the benefit of expert opinion on questions within the area of the experts’ expertise. This is, we think, elementary. JS’s refusal to comment on Miss R’s observations (whether they were accurate or inaccurate) has, we think two consequences. It not only put the judge in an extremely difficult position by depriving him of important expert evidence on a critical  part of the case (the differences between KW’s behaviour in the foster home and during contact with her mother):  it also strikes us as a sufficient derogation from the basic duty owed by an expert witness to the court to cast  doubt on the objectivity and soundness of JS’s evidence.
47.	In paragraph 95 of the judgment, a paragraph on which Mr. Keehan relies, the judge goes on to say: -
She (JS) agreed that whilst she described mother’s behaviour as sometimes disinhibited, for example, aggressive outbursts to doctors, no such behaviour had been observed by contact to supervisors (sic).  Her good behaviour at final contact was attributed by JS to the mother being aware that it was a final contact and the session being regulated. It did not happen out of the blue. This could not correlate to the mother’s day to day behaviour when she was under stress.
48.	Whilst we see the force of the point JS is making, we think Mr. Keehan entitled to pray this paragraph in aid in his overall critique of JS’s evidence.
49.	The matters listed in paragraphs 44 to 48 above are not isolated examples. We give two further instances recorded by the judge. In paragraph 68, having reviewed a number of authorities cited to him as relevant to paragraph 7 of the revised threshold criteria document,  he turned to JS’s report and evidence: -
….. I say at the outset that I found her a somewhat dogmatic witness who under cross-examination by Mr Keehan seemed, for reasons which are not clear, defensive.  She is a lady of experience and qualifications and I am surprised that she gave me the impression of someone who was disturbed to be questioned so closely, particularly when the questioning concerned a case of such complexity and such sensitivity. Having said that I find no reason to doubt her findings but nevertheless looked for other evidence to confirm if her arguments were substantiated by other evidence.
50.	The qualification in the final sentence of this paragraph is, in our judgment, highly unusual when made in relation to an expert witness as opposed to a witness of fact. Furthermore, and with all respect to the judge, we think it led him into error, since it was plain that the reports of JS carried considerable weight with other witnesses, including the local authority and the guardian. It will already have been observed that paragraph 7 of the revised threshold criteria document was based exclusively on JS’s report of 21 December 2005 The judge also records in paragraph 119 of his judgment that “the guardian placed reliance on JS’s report in evidence”.
51.	We therefore take the view that in looking to other evidence to confirm whether or not JS’s evidence was  substantiated by that other evidence, the judge placed himself in the position of  arguing in a circle, and that this led him to accept JS’s evidence without subjecting it to a sufficiently critical analysis.
52.	Our final example comes from paragraph 92 of the judge’s judgment where he says: -
Under cross-examination JS was questioned about the child’s sexualised behaviour.  JS only saw it once but she could not interpret the behaviour as other than sexual.  She would not move from this view.  I believe that on this point she was inflexible and that the behaviour demanded and should have received further investigation.  As it is I cannot rely on this observation for the purpose of the threshold criteria.
53.	That, in our view, is a very worrying statement, and clearly supports Mr Keehan’s submissions in paragraphs 30(a) to (c) of the skeleton argument which we have set out at paragraph 42 above.
54.	The judge’s final conclusion in relation to the evidence of JS was that set out in paragraph 100 of his judgment, in which he said:-
With the general and individual caveats that I have made concerning JS’s report and evidence I do accept her evidence.  She is a lady of great experience and in essence I find argument not with the content of her evidence but the way in which she gave it.  I believe her concerns for the mother and the child are genuine and well founded and I form my assessment of the mother’s parenting skills from the evidence as a whole and whilst the psychological tests were of interest I relied for my assessment of the mother on other evidence, particularly that of the mother herself.
55.	If the judge’s assessment of paragraph 7 of the revised threshold criteria document were otherwise unimpeachable, we might well have been minded to find that he was entitled to take the stance adopted in paragraph 100.  However, we do not think it is. Two points, in particular, stand out. The first is that in paragraph 137 of the judgment (which we do not propose to set out), in which he states that paragraph 7 of the revised threshold criteria document  is “clearly made out” the judge simply lists the six points contained in that paragraph without giving any reasons for his conclusion that they are established.
56.	Furthermore the position is not, in our judgment, retrieved by the fact that paragraph 137 begins with the words: “I regret that after careful review of the evidence and much thought”. We say this because it is only in paragraph 142, after he has reached his conclusion both as to threshold criteria and outcome that he puts into the equation six of the factors which militate strongly in favour of the mother’s position. The paragraph reads:-
142.  I recognise and pay tribute to the mother’s determination, and simply put she could have done no more to obtain the return of her child.  In particular, as Mr Keehan pointed out to me and rightly pointed out to me, the mother has done these things.  She has fully cooperated with all professionals involved in the case.  However difficult the work was that has not prevented her cooperation.  Secondly, she has attended all contact sessions.  I was told that these journeys were taking two and a half hours each way because of difficulties with transport and yet the mother attended every one.  This was a devotion of considerable extent.  Thirdly, she has successfully completed an intensive parenting programme and I have read the report of (the) Family Centre.  There were concerns expressed including the need for the mother to undergo other work but the essence of the family assessment was that it was successfully completed.  Fourthly, the mother has sought and obtained counselling in respect of the experiences of her own childhood and about adoption.  Fifthly, she has maintained contact with the community psychiatric team at the Clinic. Sixthly, she has of her own volition started again (the Group).
57.	We do not think that the placement of paragraph 142 can be explained in purely editorial terms. In our judgment its positioning  after the judge’s conclusions had already been expressed, and only 10 paragraphs from the end of the judgment (paragraphs dealing mostly with the ECHR and European jurisprudence) gives considerable credence to Mr. Keehan’s submission that these  important matters, and the wholly favourable impression the mother, as an honest and surprisingly candid witness, made on the judge were simply not brought into the equation when the judge was considering paragraph 7 of the revised threshold criteria document.  If that is unfair to the judge, it is not unfair to say that this is the strong impression which paragraph 142 gives. Moreover, nowhere does the judge comment on the fact that this mother, said to be dependent on her relationship with the child’s father, has apparently broken with him for good as a direct consequence of the allegations made against him.
58.	For completeness, we also think there is force in grounds 3 and 4 of the appellant’s notice which were amplified both in Mr Keehan’s skeleton argument and in oral submissions. We think, however, we have said enough to explain why, in our judgment, the judge’s analysis cannot stand. 
59.	We should, however, perhaps add that our view might have been different had the judge’s conclusions been supported by a wholly independent assessment from the child’ guardian.  We mean no criticism of the guardian when we say that we view her approach to the case as inevitably influenced to a substantial extent by JS as an expert witness jointly instructed by the guardian herself.  Thus the fact that the guardian supported the stance of the local authority serves to reinforce rather than detract from the proposition that the judge placed undue reliance on the evidence of JS, and did not weigh properly in the balance the many positive factors in the mother’s case identified by Mr. Keehan.
60.	Mr. Anelay, for the local authority, and Mr. Lopez, for the guardian, made valiant efforts to bring the judge back on board. The former pointed to the admissions made by the mother in evidence; to the judge’s express assertion that he had reached his conclusions on the evidence as a whole; to the abundant evidence of the mother’s vulnerability and dependence, and to JS’s clear evidence of her lack of parenting capacity for a child who, for whatever reason, would need more than “good enough” parenting.  The judge had, moreover seen and heard all the witnesses, and had reported their evidence faithfully. He had given each witness appropriate weight, and had reached a conclusion which was plainly open to him. 
61.	The case for the local authority could not, in our view, have been better put. It does not, however, dent our view that the judge’s analysis of the revised threshold criteria document was flawed, and that his conclusions cannot stand.   Whether the same conclusion is reached at the re-hearing is, of course, a matter for judge conducting the re-hearing.
62.	In argument before us, the question of social engineering was barely touched on. We mention it at the conclusion of this judgment only to re-iterate the point that children are not removed from the care of their parents because the latter have low intelligent quotients. They are only removed if the threshold criteria under CA 1989 are met, and if it is in their interests to be placed away from their parents.  This case is thus an object lesson in the importance of those criteria.
63.	For all these reasons, we reached the clear conclusion that the appeal must be allowed, and the consequential orders identified at the outset of this judgment made.  
64.	By way of footnote, we should explain that in our judgment, the re-hearing should be taken by a full-time judge of the Family Division and not either a Deputy or a circuit judge with a section 9 ticket.  We say this because we are strongly of the view that the next hearing ought to be the last, and because the complexities of the case amply warrant the skills of a full-time judge of the Division. There must be an end to this litigation, and a final decision made about KW. In our judgment, the best person to make that decision, in the absence of any agreement about it, is a High Court Judge of the Family Division.  We do not want to see this case in this court for a third time.